With little more than a week before voters troop to the poll precincts on May 13, senatorial candidate Dick Gordon has asked the Supreme Court to compel the Commission on Elections (Comelec) to allow the political parties to examine and review the source code of the precinct count optical scan (PCOS) machines to be used in the elections.
In a mandamus petition, Gordon and his political party, Bagumbayan-Volunteers for a New Philippines (Bagumbayan-VNP), asked the high court to compel the Comelec to fulfill its duty and obtain the required source code and make it available for review.
They castigated the Comelec for its “continuing noncompliance” of its statutory duty under Section 14 of Republic Act No. 8436, or the Automated Election System Law, as amended by RA 9369.
“[The Comelec] has not done anything concrete to obtain the required source code from [PCOS machines manufacturer] Smartmatic Corp., and it has not made the required source code available for review by the political parties, candidates and the concerned entities enumerated in the law,” the petition stated.
The petitioners called on the high court to “immediately issue summons and set the petition for oral arguments before the elections.”
A court can issue an order of mandamus even without the benefit of full judicial process, or before a case has concluded.
Gordon and Bagumbayan-VNP said the Comelec had “virtually ignored the law” by announcing that it would proceed with the May 13 elections even without the source code contemplated in the law, and even without any clearance from the congressional oversight committee on the automated elections.
“Alas, the respondent commission has become a legislature unto itself,” the petitioners said.
Gordon explained that the opportunity to review the source code—the encrypted software program that will instruct the PCOS machines how to read, count, canvas and transmit votes—was very important to ensure honest, clean and credible elections.
“In essence, the source code is the set of computer instructions to be followed by the PCOS machine which will determine the total votes that the candidates will get,” he said.
Gordon authored RA 9369 during his previous term as senator from 2004 to 2010. He is running as a guest candidate of Pwersa ng Masang Pilipino, one of two parties in the United Nationalist Alliance.
“It pains me to file this case because as principal author of RA 9369, I and my colleagues intended to safeguard the sovereign will of the people in electing their leaders. Placed in the wrong hands, the source code could be manipulated and used to systematically subvert and frustrate the people’s will,” he said.
Gordon argued that the Comelec had no discretion on whether or not to allow political parties to review the source code.
“The law is clear. Section 14 of RA 8436 says that the Comelec ‘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,’” he said.
Section 14 allows the examination and testing of the PCOS machines and the opening of the source code for review not only by political parties but also candidates, citizens’ arms or their representatives.
Gordon recalled that following the legal squabble between Smartmatic and its partner, the real owner of the source code, Dominion Voting Systems, Comelec Chair Sixto Brillantes Jr. told the media that he did not consider the review of the source code necessary, and that with or without the source code, the poll body was set to conduct the May 13 national and local elections.
According to Gordon, Brillantes later “changed gears” and announced that the Comelec already had the source code, but would not make it available for inspection by the political parties.
“I’m very concerned why the Comelec refuses to make the source code available for review and inspection after admitting that it has the source code,” the candidate lamented.
Later still, Brillantes “practically acknowledged” the importance of the source code when he announced to the media that the Comelec was considering suing Smartmatic in court for its failure to release or deliver the source code, Gordon said.
He also pointed out that Brillantes had not sought or obtained permission from Congress to conduct the polls despite the Comelec’s failure to comply with the requirements of the law concerning the source code.
Meanwhile, Brillantes on Friday said that to finally settle any lingering doubts about the credibility of the 2010 presidential elections, he was seeking the release to the public of the source code used in the 2010 elections.
The Comelec chair said he went to get the 2010 source code Friday from the central bank, where it is being stored, but Bangko Sentral ng Pilipinas Governor Amando Tetangco was not there. He said he would try again next week.
“Tetangco is in India. We need to obtain his go-signal. We will look at the vault. We will get the 2010 source code,” Brillantes told reporters.
“Many are saying that there was no source code in 2010 so we want it released to show that it was stored there in 2010. I want to testify that it’s there,” he added.
The Comelec’s critics have claimed that Smartmatic International, the provider of the PCOS machines, never had a copy of the source code and doubted it was ever deposited in the central bank.
“Truth is, there was no and has never been any source code held by Smartmatic both in 2010 and today since the real owner of the election technology, Dominion Voting Systems, has refused its disclosure and review under a 2009 licensing agreement,” the Automated Election System Watch (AES) election watchdog group said on Friday.
“This makes the whole system nontransparent: There is no way the voter, without an independent source code review by political parties and other interested groups, is assured of the accuracy and integrity of the election software,” AES said.
But Brillantes said that once he gets the copy of the 2010 source code from the central bank, he would have it released for review by political parties and interested groups.
“No one has reviewed it. We will open it if they want … I don’t know if Smartmatic will agree, but since it will not be used in [the midterm] elections, I think it can be released,” he said.
“I want to disprove those saying that, when the source code was deposited in the central bank [in 2010], it was just drama. We are sure and we’re 90, 100, 99 percent sure that there was a source code in 2010,” he added.
Brillantes said the critics were “not saying anything new” and that all their criticisms had been addressed by the Comelec.
“They have been questioning the credibility of the 2010 [elections] and they have never stopped questioning it. And now they’re applying it to [the] 2013 [midterm elections],” he said.
He noted that while the Comelec’s critics continue to claim that the automated system was faulty, they had not been able to show any proof or even credibly claim that the 2010 election results were erroneous.
“That is because the results are correct. It has been tested in over a hundred protest cases. It shows that the results of the PCOS were correct. So, they have no evidence that the PCOS was wrong,” Brillantes said.
“That is why they’re just making all this noise. No one is talking about evidence showing that the results of the 2010 elections are wrong. Not even one. No one has been able to show that,” he said.