COMELEC LOSES IN SOURCE CODE CASE WITH SUPREME COURT

COMELEC LOSES IN SOURCE CODE CASE WITH SUPREME COURT
High Court ruling hailed as a victory for public information access, transparent election

The Commission on Elections (Comelec) has been directed by the Supreme Court (SC) to release the source code used for the May 10 automated elections to the Center for People Empowerment in Governance (CenPEG) and all other interested parties for independent review.

The SC ruling vindicates CenPEG’s position for the early release of the election source code which it had asked the Comelec since May 2009, or one year before the automated elections. The review of the source code by independent parties and interested groups, CenPEG said then, would reveal whether Comelec and its outsource partner, Smartmatic-TIM, were compliant with the election law in accordance with ensuring the integrity, accuracy, and security of the automated polls.

Lito Averia, CenPEG IT consultant, today said “We hope that the Comelec does not withhold the source code anymore, as he cited the possibility that the election manager may file a motion for reconsideration with the high court and cause further delay in releasing this vital public election information. “The release and independent review of the source code will help explain many technical glitches and errors in the system which, to this day, remain unanswered,” he added.

The source code is the human-readable representation of the instructions that control the operations of all that the computer do -- from counting, canvassing and storage of all data server machines used for elections. It is the master blueprint that reveals and determines how the machine will behave and if it follows Philippine election laws.

In an unanimous en banc decision issued last Sept. 21, the high court granted CenPEG’s petition for mandamus and directed the national poll body “to make the source codes for the AES technologies it selected for implementation pursuant to RA 9369 immediately available to CenPEG and all other interested parties or groups for independent review.”

The SC upheld CenPEG’s citation of Section 12 of RA 9369, which provides that “once an AES technology is selected for implementation, the Commission shall promptly make the source code of that technology available and open … for review.”

As soon as the contract was signed in May 2009 between Comelec and Smartmatic-TIM for the outsourcing of the election technology for the May 10, 2010 polls, the source code was already deemed available, CenPEG said. CenPEG’s letter of request to the Comelec to make available the source code for independent review was approved by Comelec en banc on June 24 the same year.

However, in subsequent exchange of communications with CenPEG, Comelec refused to release the source code claiming, among other reasons, that the source code has yet to be customized and then reviewed by “an established international certification entity” (US-based SysTest Labs).

CenPEG was compelled to file a petition for mandamus with the SC for the release of the election software on Oct. 5, 2009.

In February 2010 or barely two months prior to the election, the Comelec publicly-announced that the source code was available for review. CenPEG, along with other groups and political parties, refused to participate since the “review” was a mere “walk-through” held under stringent conditions and “controlled environment.” A competent source code review usually takes at least four months.

The SC disagreed with Comelec’s reason that the source code was not yet available when CenPEG sought for its disclosure or that the review should be done “under a controlled environment.”

In its resolution, the SC directed the Comelec to release to CenPEG and all interested parties the source code of the PCOS (precinct count optical scan), the Board of Canvassers Consolidation Canvassing System, (BOC, CCS) programs for the municipal, provincial, national and congressional canvass, the Comelec server and the source code of the in-house Comelec programs called the Data Capturing System (DCS) utilities.

The citizens’ election watchdog AES Watch, other groups, and IT academics have hailed the SC decision as a people’s victory for access to public information and transparent election.

On June 3, a month after the 2010 elections, CenPEG again wrote the Comelec for access to 21 specific vital public documents including the complete Contracts with annexes between Comelec and Smartmatic and all parties contracted for the operations of the automated elections. But on July 26, the Comelec en banc again denied the release of the documents (underscoring supplied) stating no reason except for proper execution by the Project Management director, Atty. Jose Tolentino, Jr. who was earlier cited for the controversial Secrecy Folder bidding. (A listing of the 21 documents can be located in www.eu-cenpeg.com)

CenPEG is a policy research institution based in the University of the Philippines, Diliman, Quezon City. Founded in 2004, it is engaged in policy research-analysis, education- training, public and advocacy on governance, election and political parties, foreign and security policy, and Moro studies.

Click here to download the SC ruling