Philippine Supreme Court Resolutions

"G.R. No. 189546 (Center for Empowerment in Governance vs. Commission on Elections).
 

RESOLUTION 

On September 21, 2010 the Court rendered a decision in this case, granting the petition for mandamus of Center for Empowerment in Governance (CENPEG) and directing respondent Commission, on Elections (COMELEC) to make the source codes for the Automated Election System (AES) technologies selected for implementation immediately available to CENPEG and all other interested political parties or groups for independent review.

On October 11, 2010 the COMELEC submitted a Compliance-Manifestation,^[1] saying that it had from the beginning made the subject source code available to interested political parties or groups for their review. In fact, alter SysTest Labs, Inc., an international election systems certification company, completed its source code review and certification in February 2010, the COMELEC invited political parties and organizations to do their own source code review to increase confidence and transparency in the automated elections.

The COMELEC pointed out that it held dialogues with political parties and civic organizations relative to the source code review. In a meeting with these groups on February 1, 2010, the COMELEC gave them copies of its proposed guidelines for the review with the request that they submit questions, objections, or suggested amendments to the same. Eventually, the COMELEC approved the guidelines for source code review on February 10, 2010 in its Minute Resolution 10-0138,^[2] which provided as follows: 

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 non disclosure agreement before they are allowed to conduct the source code review. 

3. Entities which will conduct the source code review shall submit to 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. 

8. Each entity that conducts a source code review shall submit a report to the COMELEC after the review period.

On February 19, 2010 various groups, including CENPEG, presented a joint statement^[3] that they had chosen not to take part in the scheduled source code review since (a) it was limited to a ''walkthrough" of the source codes; and, (b) with just 2 1/2 months left before election day, there was not enough time to do a proper and thorough review. They noted that SysTest Labs, which conducted an earlier source code review and certification, did not work under the same restrictions and controls and was allowed four months to do the review. They wanted a review under the same conditions given to SysTest Labs. The COMELEC met with all interested groups on March 24, 2010 to thresh out the matter but other issues diverted the discussion.

CENPEG would now have the COMELEC declared in contempt of court for alleged refusal to comply with the Court's decision that directed the election body to allow CENPEG, which expressed a desire to do a post-election source code review, to do such a review. In its November 30, 2010 motion,^[4] CENPEG alleged that they demanded compliance with the Court's decision but it refused to release to them the source code used in the elections. CENPEG claims that they are entitled to review the source code under the same terms, conditions, and circumstances given to SysTest Labs, and the COMELEC should release the source code in the format of soft-copy versions of files in ISO-9660 format CDs or DVDs. A review, said CENPEG, under the conditions COMELEC imposed on it hardly qualified as an independent review. CENPEG points out that "a source code review conducted under the roof of the COMELEC, during times and dates under COMELEC control, with entry and egress to the premises under COMELEC control, with the use of source code review tools under COMELEC control, by programmers with COMELEC-specified certifications, under non-disclosure agreements specified by COMELEC, using read-only copies of the source code, with prohibition to bring home any part of the source code, with strict inspection of persons and their belongings on entry and egress, etc., hardly qualifies as or amounts to an 'own independent review' by political parties and interested groups."

Asked to comment on the motion, the COMELEC said that it has not refused to allow CENPEG lo conduct the subject source code review under restrictions that would prevent copying. COMELEC Commissioner Larrazabal met CENPEG's representatives to explain to them the security measures accompanying the procedure for the review but they insisted on just being handed a copy of the source code for them to take home and review as they pleased. Unless this was done, CENPEG refused to do the review.

The ultimate issue for resolution is whether or not the COMELEC's imposition of restrictive conditions on CENPEG's review of the source code it used in the automated elections constitutes contemptuous refusal to obey the Court's decision that directed COMELEC to allow CENPEG to conduct such review.

CENPEG's right to review the source code is found in Section 12 of Republic Act 9369, which requires the COMELEC to make the source code of the AES technology selected for implementation available and open to any interested political party or groups for the conduct of their own review. This right may be regarded as falling within the scope of the constitutional right of the people to information on matters of public concern.^[5] The review would have enabled interested persons to countercheck the correctness of the COMELEC-adopted AES technology. It goes hand in hand with the government's constitutional duty of full public disclosure of all transactions involving public interest.^[6]

But even the Constitution recognizes that the implementation of the right to information is "subject to such limitations as may be provided by law."^[7] Regulation of access to official records may be imposed by statutory law or may stem from the inherent power of the officer-in-charge of the agency having custody of the records to exercise discretion as to the manner such records may be inspected, examined, or copied^[8]  to avoid damage or loss, prevent interference with the other duties of the office or agency, and ensure the exercise of the right to information.^[9]

The question is: were the restrictions that COMELEC imposed on the review of its source code reasonable? The Court holds that they were.

Security reasons underlie the COMELEC's adoption of the guidelines embodied in its Minute Resolution 10-0138. The COMELEC allows an interested party to review the source code but, to prevent tampering with the code, altering it, or making a copy of it, the reviewing party must sign a nondisclosure agreement, submit the methodology for review he proposes to use, do the review in a restricted facility on a read-only copy, not take out the code or any pan of it or bring copying equipment, and submit to COMELEC a report after the review. None of these conditions, essentially designed to prevent copying, appropriation, and unauthorized use of the source code, has been demonstrated as making it impossible for CENPEG to conduct a proper source code review. CENPEG has not even attempted to do the review under such conditions.

The COMELEC has valid reasons for these restrictions. Under the contract between the COMELEC and Smartmatic, the company that provided the technology and equipment for the automated elections, the source code used in the elections remains to be Smartmatic's private intellectual property.^[10] The latter has not ceded its ownership right to the COMELEC. Indeed, their contract provides only for guarded disclosure of the source code. Article 7.2 of that contract states: "x x x The system-software, hardware, and source code, including documentation, will be open for inspection at any time in a controlled environment under guidelines formulated and agreed by both parties." While CENPEG has a valid interest in reviewing and testing the source code's technical proficiency, it has no right to acquire and appropriate the same.

CENPEG cannot demand the same conditions for review that COMELEC allowed SysTest Labs, the international election systems certification company that conducted the source code review and certification that the law required. SysTest Labs' review and certification formed part of the process for completing the source code preparation. It is not the source code review contemplated for CENPEG and other similarly placed parties or groups.

WHEREFORE, the Court DENIES the motion to cite respondent Commission on Elections in contempt of Court for lack of merit."
 

Very truly yours,

(Sgd.) ENRIQUETA E. VIDAL
  Clerk of Court

Endnotes:

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^[1] Rollo, pp. 173-177.

^[2] Id. at 178-181. 

^[3] Id. at 225. 

^[4] Id. at 231-237. 

^[5] CONSTITUTION, Art. III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 

^[6] CONSTITUTION, Art. II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. 

^[7] Supra note 5, CONSTITUTION, Art. III, Sec. 7. 

^[8] Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 335, citing Subido v. Ozaeta, 80 Phil. 386-387 (1948). 

^[9] Legaspi v. Civil Service Commission, No. L-72119, May 29, 1987, 150 SCRA 530. 

^[10] See Contract for the Provision of and Automated Election System for the May 10, 2010 Synchronized National and Local Elections, Article 7.2, Rollo, pp. 45-46.