.
.

SC nixes group’s petition to cite Comelec in contempt

May 9, 2011
from NAMFREL Election Monitor Vol.2, No.9
.
The Supreme Court has affirmed the right of the Comelec to impose security measures in allowing third-party groups to conduct an independent review of the source code used in the automation election system (AES) provided by Smartmatic-Total Information Management Corp. during the country’s first-ever nationwide computerized balloting in 2010.

Source code is the human-readable set of computer program instructions used to specify the internal actions to be performed by the SAES-1800 [Smartmatic Auditable Election System] machines and REIS [Real-Time Information System] computers.

In an en banc resolution, dated April 12 but released only last week, the high court rejected the petition filed by the Center for Empowerment in Governance (CenPEG), a public policy center, to cite the Comelec in contempt of court for requiring a set of conditions for this private group to access and review the source code.

The high court said the source code remains the private intellectual property of Smartmatic, so the Comelec had the right to impose “reasonable” security restrictions in a post-election review by CenPEG or any other interested nongovernment organization or political party to prevent the code from being tampered with or unduly appropriated or copied.

“The court denies the motion to cite respondent Commission on Elections in contempt of court for lack of merit,” stated the resolution.
Comelec had chosen Smartmatic-TIM’s AES technology through a public bidding, in lieu of other proposed systems like the Open Election System (OES), which was being pushed by newly appointed Comelec Commissioner Augusto Lagman and other CenPEG-allied personalities and partner-NGOs. OES provides for a mix of manual voting and computerized canvassing as against the full computerization model of Smartmatic- TIM’s AES.

The high court acknowledged in its decision the right of CenPEG and other groups to conduct a review of the source code as provided under Section 12 of Republic Act 9639, or the automated elections law, and in keeping with the people’s constitutional right to information on matters of public concern.

But in the same ruling, the court noted that even the Constitution recognizes that the exercise of this right to information is “subject to such limitations as may be provided by law.” In the case of the source code used in the May 2010 elections, the Comelec imposed the following eight conditions in allowing CenPEG to conduct a review:
1. Entities interested in conducting a source code review must signify their interest in writing for approval of the
Comelec;
2. Entities approved by Comelec shall sign a nondisclosure agreement before they are allowed to conduct the
source code review;
3. Entities which will conduct the source code review shall submit to the Comelec the methodologies they
propose to use;
4. Comelec shall provide a secure and enclosed location/facility for the conduct of the source code review, and
all entries and exits into the facility shall be properly recorded;
5. A read-only copy of the source code shall be provided on secured Comelec workstations in the secured
location/facility;
6. No copies of the source code or any part thereof may be taken out from the secured location/facility;
7. No electronic devices of any kind, including but not limited to laptops, mobile phones, cameras, USB drives
and other storage devices shall be permitted inside the secured location/facility; and
8.  Each entity that conducts a source code review shall submit a report to the Comelec after the review period.
It will be recalled that in a 7-page decision passed in September 2010 (http://bit.ly/9ka5UG), the Supreme Court has ordered the Comelec to reveal the source codes of Smartmatic's automated system used in last year's May elections, granting a petition for mandamus filed by CenPEG. The Comelec has yet to comply with said ruling.

(Sources: PDI / ABS-CBN)
.
 
.
.
.