More than legality

“Ayoko na.”

Thus did Commission on Elections Chair Sixto Brillantes rather dramatically throw up his hands in the quest for the all-important source code of the precinct count optical scan (PCOS) machines that will be used in the May elections. “I’m no longer interested because it’s too late already,” he said. “Election Day is so close, and even if they give us the source code now, it can no longer be reviewed for lack of time.”

To be fair to Brillantes, he appears to have worked hard to secure the source code. He brokered negotiations, apparently in vain, between the two feuding parties central to the case—Venezuela-based Smartmatic International Corp., which supplied the Comelec with the PCOS machines, and US-based Dominion Voting Systems, which owns the source code, defined by Republic Act No. 9369 as the “human-readable instructions that define what the computer equipment will do.”

The source code, in other words, lays out the instructions for how the PCOS machines should count and canvass votes. The problem is that Smartmatic and Dominion are at loggerheads over money—$10 million, which Dominion says Smartmatic owes it for the use of the technology. The source code is with Dominion’s party reviewer SLI Global Solutions in Denver, Colorado; it has refused to release the source code without Dominion’s permission.

The collateral damage in this dispute is the Philippine electoral system, which now appears to be in legal limbo, or at least in dangerously uncharted waters, as the source code’s absence in the coming polls risks undermining the process.

Section 11 of RA 9369 or the Automated Election Law is crystal-clear in its mandate: Three months before the elections, there should be a “successful completion of a source code review; a certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas; and a certification that the source code reviewed is one and the same as that used by the equipment.”

The law also mandates the Comelec to “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.”

“We don’t need the source code to run the elections,” Brillantes has hastened to add. “The source code is only for the purpose of the political parties and interested groups,” whose assessment of the code is important “for credibility purposes, not for the legality or legitimacy of the elections.”

Brillantes is a veteran election lawyer, so he should know whereof he speaks when it comes to the law. But his pained distinction between election “credibility” and “legitimacy” smacks of lawyerly double-talk, if not a disconcerting tone-deafness about the very process he’s in charge of. He should know, above everyone else, that elections are more than a matter of legality; once the polls are perceived as fraudulent, untrustworthy and not expressive of the people’s will, they will have no credibility to speak of, and no amount of pleading that it was all a perfectly legal exercise anyway will soothe an angry public.

Already, civic groups are up in arms at Brillantes’ hasty dismissal of this crucial electoral requirement. Kontra Daya spokesman Fr. Joe Dizon said that without a local source code review, the 2013 elections “will be under a cloud of doubt… The source code review was instituted precisely to assure the political parties and the electorate that the software to be used in counting our votes is trustworthy. It wasn’t put there out of whim, like what Brillantes makes it appear with his irresponsible statements.”

Barely two weeks before the May 13 polls, it may indeed be too late to force the source code out of Dominion’s hands. The Philippines being an independent party to its dispute with Smartmatic, the Comelec should seriously throw the book at and seek the accountability of the company for its inability to produce the source code.

However, for the head of the Comelec to publicly cede ground on this matter as definitively as Brillantes has is no help to the country’s fragile election process. It does not inspire confidence in his leadership and commitment to fight for transparency, above all, in the conduct of the polls. And, without the safeguards provided by the source code, the result of the elections might well be, once again, widespread turmoil consisting of endless second-guessing, poisonous conjecture and free-for-all recriminations.