Kilusan Ng Mamamayan Para Sa Matuwid Na Bayan vs. Commission on Elections (Comelec)

Manila

EN BANC

[ G.R. No. 259850, June 13, 2023 ]

KILUSAN NG MAMAMAYAN PARA SA MATUWID NA BAYAN, A COALITION OF CORPORATE ENTITIES DULY REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION, WHICH ARE PETITIONERS HEREIN AS WELL, NAMELY, CAPITOL CHRISTIAN LEADERSHIP; BUKLOD PAMILYA INCORPORATED; KMP, KOALISYONG PANGKAUNLARAN NG MAMAMAYAN; AND KNK, ANAK NG DIYOS KADUGO NI KRISTO, AND JOSE LAGUNSAD GONZALES, VICENTE ALEJO MACATANGAY, JR., SHARON FAITH SAMACO PAQUIZ, NELSON JAVA CELIS, MELCHOR GRUELA MAGDAMO, RODRIGO G. CORNEJO, AND MELANIO LAZO MAURICIO, JR., PETITIONERS, VS. COMMISSION ON ELECTIONS (COMELEC), Respondent.

DECISION

ROSARIO, J.:

Before the Court is a'Petition for Mandamus to Compel the Respondent to Assert its Authority over the Foreign Election Technology Provider by Promulgating Mandatory Implementing Rules while Complying with Mandatory Public Consultation.1

Petitioners in the present case2'are the following: Kilusan ng Mamamayan Para sa Matuwid na Bayan (KMMB); KMMB's member organizations, namely Capitol Christian Leadership, Buklod Pamilya Incorporated, KMP Koalisyong Pangkaunlaran ng Mamamayan, KNK Anak Ng Diyos Kadugo Ni Kristo; Jose Lagunsad Gonzales (Gonzales), Vicente Alejo Macatangay, Jr. (Macatangay, Jr.); Sharon Faith Samaco Paquiz (Paquiz); Nelson Java Celis (Celis); Melchor Gruela Magdamo (Magdamo); Rodrigo G. Cornejo (Cornejo); and Melanio Lazo Mauricio, Jr. (Mauricio, Jr.).3

Petitioners pray that the Court issue a writ of'mandamus'compelling the Commission on Elections (COMELEC) to (1) issue the implementing rules and regulations required by the laws mentioned in the Petition, and (2) towards that purpose, to conduct public consultations as soon as possible on the following concerns:

(1) proper implementation of at least 15 mandatory minimum functional system capabilities for an automated election system under Section 7 of Republic Act (RA) No. 9369;

(2) proper implementation of similar safeguards under other laws;

(3) poll procedures respecting the right of watchers to "take photographs of the proceedings and incidents" in accordance with Section 179 of Batas Pambansa (BP) Blg. 881, otherwise known as the Omnibus Election Code, and the amplification of the same right to the "public" pursuant to RA No. 7166;

(4) honest implementation of the Court's ruling in'Bagumbayan-VNP Movement, Inc. v. Commission on Elections4'on Voter Verified Paper Audit Trail until the Audit Trail Stage;

(5) resolution of the discrepancies in Section 20(f) of COMELEC Resolution No. 10057, in relation to Section 2(f) of Resolution No. 10088 and Section 20(f) of Resolution No. 10460, with the end in view of deleting the sweeping ban against cameras in the phrase "whatever purpose" in Section 2(f);

(6) electronic signatures under RA No. 9369, Sections 22 and 25 under which the machine number of a Smartmatic Vote Counting Machine (VCM) or'iButton'is only a machine identifier under Smartmatic control; such machine identifier is not and cannot be an electronic [digital] signature chosen by and under the independent control of each individual member of the Board of Election Inspectors/Board of Canvassers/Electoral Board;

(7) honest implementation of the electronic [digital] signature system so that Electoral Board members may authenticate or reject each and every electronic transmission of election result before the Board proclaims a winning candidate under Section 22 of RA No. 9369;

(8) compliance with Section 19 of RA No. 9369 requiring electronic transmission of election return copies direct to the Kapisanan ng mga Brodkaster ng Pilipinas free from Smartmatic interference;

(9) random manual audit that is truly random; and

(10) others which the Court may deem best in the interest of substantial justice for the People of the Philippines.5

Petitioners seek to compel the COMELEC to comply with the purportedly mandatory public consultation requirement when formulating vital implementing rules involving the national and local elections. They submit that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction by its refusal to act on the Letter6'dated February 14, 2022 of KMMB seeking the COMELEC's issuance of implementing rules and regulations required by the Constitution and the relevant laws on the "selection of the election system to be used during Philippine elections." Petitioners argue that'mandamus'will lie to compel the COMELEC to perform its duty to issue the said implementing rules and regulations required by the Constitution and the laws governing the selection of the election system to be used during the Philippine elections,'i.e.', BP Blg. 881, otherwise known as the Omnibus Election Code, RA Nos. 7166,7'83468'and 9369.9

Petitioners argue that a major reason for the unfaithful implementation of the law on the automation of elections is the absence of implementing rules for some of the crucial safeguards in the conduct of automated elections. Specifically, petitioners aver that after the May 13, 2019 elections, the COMELEC did not promulgate rules for mandatory minimum functional system capabilities for election automation technology as enumerated under Section 7 of RA No. 9369. Further, while the COMELEC activity calendar is full of so many schedules for so many perfunctory tasks, there is none for public consultation on the formulation of implementing rules for at least 15 minimum functional system capabilities.10

Petitioners also maintain that many people were misled into believing that several COMELEC Resolutions affecting transcendentally important mandatory poll safeguards underwent public consultation prior to promulgation as an implementing rule. Petitioners cite as an example RA No. 9369 which expressly requires the implementation of an electronic digital signature system to prevent fraud during the electronic transmission of election results. However, Section 40(f)11'and Section 40(g)12'of COMELEC Resolution No. 8786, otherwise known as the "Revised General Instructions for The Board of Election Inspectors (BEI) on The Voting, Counting, and Transmission of Results in Connection with the 10 May 2010, National and Local Elections,"13'went the opposite direction by commanding all Board of Election Inspectors nationwide to deactivate the digital signature system. Petitioners emphasize that no consultation was ever done by COMELEC prior to insertion of subsections (f) and (g) in Section 40 of COMELEC Resolution No. 8786.14

As another example, petitioners further cite Section 2(f)15'of COMELEC Resolution No. 1008816'which also did not have the benefit of public consultation. Petitioners emphasize that Section 17917'of the Omnibus Election Code allows and even encourages poll watchers to take photographs. Further, RA No. 7166, which is an amendatory legislation to the Omnibus Election Code, gives the privilege of taking photographs not only to the poll watchers but also to the public. Also, Section 19 of RA No. 9369 expressly provides that any person may view or capture an image of the election return by means of cameras or any data capturing device. In contrast with the abovementioned laws, Section 2(f) of COMELEC Resolution No. 10088 imposed a sweeping ban against any capturing device, including digital cameras or cellular phones for whatever purpose, thereby suppressing and hiding the shortcomings of Smartmatic.18

Petitioners point out that RA Nos. 8436 and 9369 which are election automation laws entrust to the COMELEC the promulgation of rules and regulations for the implementation and enforcement of the said laws. Petitioners maintain that the rules and regulations under these election automation laws are quasi-legislative rules which require public hearing prior to promulgation; since the said rules and regulations are not merely interpretative in nature, the COMELEC has no excuse to avoid the public consultation requirement.19

Petitioners invoke the provision on public participation under the Administrative Code of 1987,'i.e., Section 9(1) and (3),20'Chapter 2 (Rules and Regulations), Book VII (Administrative Procedure). Petitioners explain that said provision requires the publication or circulation of notices of rule proposals to afford the opportunity for submissions of views prior to the adoption of any rule, and commands the observation of a contest procedure whenever the administrative agency receives an opposition to a rule-making proposal.21'Thus, at the very least, COMELEC must open to public consultation the following purportedly questionable COMELEC resolutions:22

(1) Resolution No. 8786, Section 40(f) and (g) insofar as the Resolution provides that, in the counting of ballots and transmission of results, the instruction is that when the Precinct Count Optical Scan (PCOS) displays the message "WOULD YOU LIKE TO DIGITALLY SIGN THE TRANSMISSION FILES WITH A BEI SIGNATURE KEY?," the "NO" option should be pressed.

(2) Resolution No. 10458,23'Section 424'(b) and (c) insofar as the Resolution provides that in the random selection of precincts for the' random manual audit, the list of the specific municipalities/cities shall be released to the public at 2:00 p.m. on the day of the election, and that at 9:00 a.m. of the day after the election, the Random Manual Audit Committee shall randomly select, from the municipalities/cities identified earlier, the specific sample of precincts for a random manual audit; and Resolution No. 10460,25'Section 2026'insofar as it declares unlawful the voter's act of using capturing devices, including, but not limited to, digital cameras or cellular phones for whatever purpose while inside the polling place.27

Petitioners also pray that a temporary restraining order and/or the appropriate injunctive relief be issued, stopping the COMELEC from utilizing in any manner, Smartmatic, Inc., its VCMs, PCOS, and other gadgets and instruments for holding an automated system of elections, for the 2022 elections and thereafter unless the appropriate implementing rules and regulations have been promulgated by the COMELEC.28

We dismiss the Petition and deny the prayer for the issuance of a temporary restraining order or any injunctive relief.

At the outset, the Petition suffers from procedural defects. Notably, after petitioners filed the present Petition, the Court, in its Resolution29'dated April 19, 2022, required petitioners to comply with the following procedural requirements:

(i) requirement to submit proof of service (e.g., a written admission of the party served, or an affidavit of the party serving and registry receipts) of the Petition on the adverse party pursuant to Section 2(c), Rule 56, in relation to Section 17, Rule 13, 1997 Rules of Civil Procedure, as amended;

(ii) requirement to submit a proper verification and certification against forum shopping as required by Rule 65 in relation to Sections 4 and 5, Rule 7, same Rules, it appearing that the affiant therein lacks competent evidence of identity; and

(iii) requirement to provide competent evidence of identity of the affiant in the affidavit of service pursuant to Sections 2, 6 and 12, Rule II of the 2004 Rules on Notarial Practice, as amended.30

In their Compliance,31'petitioners submitted Mauricio, Jr.'s affidavit stating that he served the Petition to the COMELEC through electronic transmission at info@comelec.gov.ph, the latter's email address publicly listed in its website.32'Notably, the page of the affidavit containing the notarization does not indicate Mauricio, Jr.'s competent evidence of identity. Further, the Verification and Sworn Certification Against Forum Shopping attached to the Compliance, which was executed by petitioners Macatangay, Jr., Paquiz, and Gonzales, lacks Paquiz's signature. Further, while the notary public certified that the affiants personally appeared before him and displayed to him the government IDs indicated below their names, the competent evidence of identification of Macatangay, Jr., Paquiz, and Gonzales do not appear below their names. Instead, the barely readable copy of the ID of Macatangay, Jr., and a copy of the ID of Gonzales were attached as the last pages of the Compliance or the Verification and Sworn Certification Against Forum Shopping.33

While it might be the case that the IDs of Macatangay, Jr. and Gonzales'copies of which were attached to the Compliance'were presented to the notary public at the time of notarization of the Verification and Sworn Certification Against Forum Shopping, such possibility is a mere speculation as the competent evidence of identity of Macatangay, Jr. and Gonzales do not appear on the face of the Verification and Sworn Certification Against Forum Shopping.

In addition, it must be noted from the Petition that KMP Koalisyong Pangkaunlarang ng Mamamayan and KNK Anak ng Diyos Kadugo ni Kristo had no duly authorized representatives to participate in the filing of the Petition as in fact, no person executed a Verification and Sworn Certification Against Forum Shopping on their behalf.34'Also, some of the named petitioners,'i.e., Celis, Magdamo, Cornejo, and Mauricio, Jr. failed to execute a Verification and Sworn Certification Against Forum Shopping either in the original Petition or by way of compliance to the Court's April 19, 2022 Resolution.

Thus, petitioners KMP Koalisyong Pangkaunlarang ng Mamamayan and KNK Anak ng Diyos Kadugo ni Kristo, as well as Paquiz, Celis, Magdamo, Cornejo, and Mauricio, Jr., should be dropped as petitioners.

As to the remaining petitioners, despite being given the chance to rectify the procedural infirmities of the Petition, they still failed to correct the said errors. Considering the procedural infirmities of the Petition, the Petition should be dismissed.

Parenthetically, not all of the remaining petitioners were able to show their legal standing to file the Petition.

As explained in'AES Watch v. COMELEC35'(AES Watch), "[t]he question in standing is whether such parties have 'allege[d] such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court [so largely] depends for illumination of difficult constitutional questions.'"36

Specifically, on the part of petitioners which are organizations, they merely alleged that they are juridical corporate entities with capacity to sue and be sued, that their participation had been duly authorized by their respective boards of trustees, and that all leaders and members of the KMMB have been and continue to be facing public scrutiny for their advocacy. These averments do not meet the requisite personal and substantial interest which would grant them standing.37

However, on the part of the remaining individual petitioners Macatangay, Jr. and Gonzales, while they failed to allege any material injury, a relaxation of the rule on legal standing would have been warranted were it not for the dismissal of the present Petition based on procedural grounds, considering that they are filing the present Petition as citizens. In'Francisco, Jr. v. House of Representatives,38'the Court discussed:

When suing as a'citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.39'(Citations omitted)

It also bears noting that petitioners failed to substantiate their allegation that there are no implementing rules for some of the crucial safeguards in the conduct of automated elections as prescribed under Section 7 of RA No. 9369. Petitioners even mentioned the conduct of Random Manual Audit and Resolution No. 10088 entitled "Amending Certain Provisions of Resolution No. 10057 dated February 11, 2016 or otherwise known as the General Instructions for the BEI on the Testing and Sealing of Vote Counting Machines (VCMs), and Voting, Counting and Transmission of Election Results in Connection with the 09 May 2016 National and Local Elections" which are among the measures availed by the COMELEC in ensuring the integrity of the national and local elections. Notable from the present Petition is petitioners' citation and elaborate discussion of various COMELEC Resolutions governing the conduct of automated elections.

Furthermore, in'AES Watch,'the Court noted the prohibition in COMELEC Resolution No. 10088 (which served as guidelines for the 2016 National Elections),'i.e., that it shall be unlawful for a voter to "[u]se capturing devices, including, but not limited to, digital cameras or cellular phones for whatever purpose while inside the polling place." However, the Court emphasized that COMELEC Resolution No. 10460 for the 2019 Elections already removed the phrase "for whatever purpose." Specifically, the Court quoted both Section 2 of Resolution No. 10088 and Section 64 of Resolution No. 10460, to wit:

Lastly,'AES Watch'reiterated the ruling in'Capalla v. COMELEC40'that PCOS machines are capable of digitally-signed transmissions. In'Bagumbayan-VNP Movement, Inc. v. COMELEC,41'citing'Capalla,'the Court discussed that there is no infirmity as regards the signature of a PCOS machine being the equivalent of a digital signature.

ACCORDINGLY, the instant Petition for'Mandamus'is'DISMISSED, and the prayer for temporary restraining order and/or any injunctive relief is'DENIED.

SO ORDERED.

Caguioa, Lazaro-Javier, Zalameda, M. Lopez, Gaerlan,' Dimaampao, Marquez,'and'Singh, JJ., concur.Leonen,'Acting C.J.,'see separate concurring opinion.Gesmundo,'C.J.'and'Hernando,'J.,'on official leave.Inting****' and Kho, Jr.,******'JJ.,'no part.J. Lopez,*****'J.,'on leave.

Footnotes

*'On official leave.

**'Acting Chief Justice per Special Order No. 2977 dated June 1, 2023.

***'On official leave.

****'No part.

*****'On leave.

******'No part.

1'Rollo, pp. 3-46.

2'Id. at 3 and 9; the first page of the Petition indicates that the Petition filed is a Petition for'Certiorari,'Mandamus'and Prohibition although the designation of the Petition as well as the discussion on the nature of the Petition shows that what petitioners filed was a Petition for'Mandamus.

3'Id. at 3, 10-11.

4'782 Phil 1306 (2016) [Per J. Leonen,'En Banc].

5'Rollo, pp. 43-44.

6'Id. at 87-157.

7'An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes, Approved November 26, 1991.

8'An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds Therefor and For Other Purposes, Approved December 22, 1997.

9'An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing The Commission On Elections To Use an Automated Election System in The May 11, 1998 National or Local Elections and in Subsequent National And Local Electoral Exercises, To Encourage Transparency, Credibility, Fairness And Accuracy Of Elections, Amending For The Purpose Batas Pambansa Blg. 881, as Amended, Republic Act No. 7166 And Other Related Election Laws, Providing Funds Therefor and For Other Purposes," Approved January 23, 2007;'see'rollo, pp. 9, 12.

10'Rollo, pp. 34-35.

11'Section 40.'Counting of ballots and transmission of results; Procedure.'(Renumbered) (As Revised)

. . . .

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

12'Section 40.'Counting of ballots and transmission of results; Procedure. (Renumbered) (As Revised)

g) Press "NO" option. The PCOS will display "ARE YOU SURE YOU DO NOT WANT TO APPLY A DIGITAL SIGNATURE?" with a "YES" and "NO" option;

13'Promulgated on March 4, 2010.

14'Rollo, p. 7.

15'SECTION 2.'Sections 20(a) and (f) of Resolution No. 10057 are hereby amended to read as follows:

"SEC. 20. Prohibitions on voting. - It shall be unlawful for a voter to:

a) Bring the ballot, ballot secrecy folder, marking pen or voter's receipt outside of the polling place; xxx

f) Use capturing devices, including, but not limited to, digital cameras or cellular phones for whatever purpose while inside the polling place;"

16'Entitled "Amending Certain Provisions of Resolution No. 10057 dated February 11, 2016 or otherwise known as the General Instructions for the Boards of Election Inspectors (BEI) on the Testing and Sealing of Vote Counting Machines (VCMs), and Voting, Counting and Transmission of Election Results in Connection with the 09 May 2016 National and Local Elections," promulgated on April 12, 2016.

17'SECTION 179.'Rights and duties of watchers. ' Upon entering the polling place, the watchers shall present and deliver to the chairman of the board of election inspectors his appointment, and forthwith, his name shall be recorded in the minutes with a notation under his signature that he is not disqualified under the second paragraph of Section 178. The appointments of the watchers shall bear the personal signature or the facsimile signature of the candidate or the duly authorized representatives of the political party or coalition of political parties who appointed him or of organizations authorized by the Commission under Section 180. The watchers shall have the right to stay in the space reserved for them inside the polling place. They shall have the right to witness and inform themselves of the proceedings of the board of election inspectors, including its proceedings during the registration of voters, to take notes of what they may see or hear, to take photographs of the proceedings and incidents, if any, during the counting of votes, as well as of election returns, tally boards and ballot boxes, to file a protest against any irregularity or violation of law which they believe may have been committed by the board of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificate as to the filing of such protest and/or of the resolution thereon, to read the ballots after they shall have been read by the chairman, as well as the election returns after they shall have been completed and signed by the members of the board of election inspectors without touching them, but they shall not speak to any member of the board of election inspectors, or to any voter, or among themselves, in such a manner as would distract the proceedings, and to be furnished with a certificate of the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the members of the board of election inspectors. Refusal of the chairman and the members of the board of election inspectors to sign and furnish such certificate shall constitute an election offense and shall be penalized under this Code.

18'Rollo, p. 8.

19'Id. at 9.

20'Section 9, Chapter 2, Book VII of the Administrative Code of 1987 provides:

Section 9.'Public Participation. -

(1) If not otherwise required by law, an agency shall, as far as practicable, publish or circulate notices of proposed rules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.

(2) In the fixing of rates, no rule or final order shall be valid unless the proposed rates shall have been published in a newspaper of general circulation at least two (2) weeks before the first hearing thereon.

(3) In case of opposition, the rules on contested cases shall be observed.

21'Rollo, p 8.

22'Id. at 42-43.

23'Entitled "In the Matter of the General Instructions for the Conduct of Random Manual Audit (RMA) for the 13 May 2019 Automated Synchronized National and Local Elections and Subsequent Elections Thereafter," promulgated on December 5, 2018.

24'SECTION 4. -'The Random Selection of Precincts for the MA. The random selection of the precincts for the RMA shall be conducted publicly in the following manner:

a) At 12:00 noon on Election Day, the RMAC shall first randomly select the municipality/city from which the clustered precincts are to be selected under paragraph c of this provision.

b) The List of the Specific Municipalities/Cities shall be released to the public at 2:00 p.m. on Election Day.

c) At 9:00 a.m. of the day after the election, the MAC shall randomly select, from the municipalities/cities identified earlier, the specific sample precincts for the RMA.

d) The List of Specific Clustered Precinct/s per legislative district that have been randomly selected for RMA shall be released to the public at 10:00 a.m. on the same day.

The random selection shall be done using an automated random selection program recommended or developed by the PSA.

xxxx

25'Entitled "General Instructions For The Electoral Boards (EBs) On The Process Of Voting Counting And Transmission Of Election Results In Connection With The 13 MAY 2019 National And Local Elections," promulgated on December 6, 2018.

26'On page 40 of their Petition (rollo, p. 42), petitioners alleged that Section 20 of COMELEC Resolution No. 10460 states that "[i]t shall be unlawful for a voter to use capturing devices, including, but not limited to, cameras or cellular phones for whatever purpose while inside the polling place."

However, the actual text of Section 20 reads as follows:

Sec. 20. Voting Privilege of the Electoral Board. - EB members may vote in the polling places where they are assigned on election day as long as:

a. They are registered voters of the city within the same legislative district, or municipality where they are assigned;

b. Their voting in the polling place where they are not registered should be noted in the Minutes of Voting and Counting of Votes; and

c. They shall add in the EDCVL their names and precinct numbers and the place where they are actually registered.

Any EB member, who is not registered in the city or municipality where they are assigned, or registered in the city of another legislative district, may vote in the polling place where they are registered, provided that:

a. The voting in their place of assignment is light;

b. Their absence shall not be for more than thirty (30) minutes;

c. The EB members shall schedule the voting so that only one (1) member shall leave at any given time;

d. They must be given priority in voting; and

e. The fact that they exercised their voting privilege shall be noted in the Minutes.

In the alternative, the EB may avail of local absentee voting pursuant to Comelec Resolution No. 10443 dated 8 November 2018 entitled "Rules and Regulations on Local Absentee Voting in Connection with The May 13, 2019 National and Local Elections."

27'Rollo, p. 42.

28'Id. at 44.

29'Id. at 160-161.

30'Id. at 160.

31'Id. at 163-72.

32'Id. at 165.

33'Id. at 167-172.

34'Id. at 46-47.

35'G.R. No. 246332, December 9, 2020 [Per J. Lopez,'En Banc].

36'Id.

37'Id.

38'460 Phil. 830 (2003) [Per J. Carpio Morales,'En Banc].

39'Id. at 895-896.

40'687 Phil. 617 (2012) [Per J. Peralta,'En Banc].

41'851 Phil. 685 (2019) [Per J. A. Reyes, Jr.,'En Banc].