The following is a re-post, a revision of one made earlier (on Aug. 1, 2009).
The law (RA 9369) is crystal clear. Once an automated “system” has been chosen, the Comelec is duty bound to “promptly” make the source code available to the public (RA 8436, Sec. 14, as amended). There is no discretion given to Comelec, as the duty is clearly ministerial, and it should be controllable by Mandamus.
The precise wording of said Sec. 14 is as follows:
SEC. 12. Section 10 of Republic Act No. 8436 is hereby amended to read as follows:’SEC.14. xxx Once an AES technology is selected for implementation, the Commission 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.'”
And yet, a Comelec official reportedly said that “guidelines” on the source code review “are yet to be drafted.” In effect, absent such guidelines, the code would not be made available.
Thus, “promptly” could mean “when I want to give it to you.” Or, it could mean “I can’t give it to you because Smartmatic-TIM has not agreed to guidelines on the source code review.”
If it is the first, that would be oppression. If it is the second, a private agreement is being held to materially change RA 9369, which is legally untenable. It is well settled that contracts are subject to law, and not the other way around (Art. 1306, Civil Code). In fact, the contract Comelec entered into with Smartmatic-TIM overrides the law by subjecting the source code review to guidelines agreed between Comelec and Smartmatic-TIM. In short, if Smartmatic-TIM does not agree to guidelines, there can be no source code review. If that is the case, then the contract contravenes the “promptly” safeguard imposed on source code review being made available to other parties.
The relevant contract provision that modifies the law is Art. 7.2, and it reads as follows:
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.
This contract provision thus helps to explain the official Comelec view:
Without meaning to be flippant about it, when the law says “promptly,” it does not necessarily mean tomorrow. Nor does it mean “when CenPEG wants it.” The COMELEC will release the source code; Smartmatic-TIM have assured the COMELEC and the public that they will not oppose releasing the source code; and it still does not make a whole load of sense to release a source code that does not take into consideration all the unique features of Philippine elections.
Of course, it is proper to take our environment into account. That is perhaps why the word “promptly” is in the law. If the source code were to be released too late, we (the public) will not know how to protect ourselves against potential problems “inside” the machine. The official Comelec view seems guardedly vague. All it says is that they will release, but not when.
CONCLUSION: It is settled that one way of dealing with a contract stipulation that contravenes the law is that it is void and it should be read as not written (Art. 1420, Civil Code, provides that the rest of the contract, if divisible, may be enforced). Thus, the “guidelines” provision on source code review is legally infirm and does not grant Comelec or Smartmatic-TIM any rights to delay the availability of source code for review by “any interested political party or groups.”
But see the Daily Tribune report.