SC Dismisses for Mootness Petitions for Mandamus re Source Code Review; Dismisses Indirect Contempt Charge Against Former COMELEC Chair Brillantes. Jr.

July 1, 2019

The Supreme Court en banc has dismissed on the ground of being moot and academic the consolidated petitions for mandamus  filed by the Bagumbayan-VNP Movement, Inc. (Bagumbayan) and Senator Richard Gordon (docketed as GR No. 206719); and  by Tanggulang Demokrasya and taxpayers  Evelyn I. Kilayko, Teresita D. Baltazar, Pilar L. Calderon, Elita T. Montilla, and Andrea H. Cedo (docketed as GR No. 206784)  re the source code review provided under RA 9369 amending RA 8436 (the Election Modernization Act of 1997

For “utter lack of merit,” the SC also dismissed “the Petition for Mandamus insofar as the other allegations of the petitioners on matters not involving the source code review,” referring to the prayer of petitioners in GR No. 206784 to compel the COMELEC to use digital signatures in the electronic election returns and provide for the basic security safeguards, which include the source code review, vote verification, and random audit in compliance with RA 9369.

In a 30-page decision promulgated on April 10, 2019  penned by Justice Andres B. Reyes, Jr., the SC denied the petitioners’ prayer for Mandamus  and likewise dismissed “for utter lack of merit”  the petition (docketed as GR No. 207755) filed by  the petitioners in GR No. 206784 to hold former COMELEC Chair Sixto S. Brillantes, Jr. in contempt   for allegedly failing to comply with his commitments to the SC in the May 8, 2013 oral arguments to, among others, make the source code available for review and to grant more time to the parties to comply with the requirements to do so.

The Court took judicial notice of COMELEC Resolution No. 10423 promulgated on September 21, 2018, modifying the qualifications for the source code review for the 2019 elections as well as providing for several steps before an interested party may actually get around to reviewing the source code. “As this Resolution No. 10423 governs the conduct of the [2019] elections and any automated election from here on unless it, itself, is superseded by another, the cause of action of the petitioners has ceased to exist,” the Court ruled.

As was the case in the discussion of the source code, the SC noted the recent promulgation of Resolution No. 10458 (General Instructions  for the conduct of Random Manual Audit relative to the 13 May 2019 Automated National and  Local Elections and subsequent elections thereafter), on December 5, 2018, Resolution No. 10460, or the General Instructions on the constitution, composition and appointment of the Electoral Board; use of the Vote Counting Machines; the process of testing and sealing of the Vote Counting Machines; and the voting, counting and transmission of election results, on December 6, 2018, and Resolution No.  10487, or the VCM Operation procedures for (A) Final Testing and Sealing (FTS) (B) Election Day and (C) Transmission of Election Results in connection with the 13 May 2019 National and Local Elections, on January 23, 2019 (Resolution No. 10487, in particular, supplanted Resolution No. 10460) . The SC ruled that “The promulgation of these removes the justiciable controversy existing in the consolidated petitions especially as it is these resolutions that now govern the conduct of the specific items being assailed.”

Regardless, the SC held that the electronic transmission through the method promulgated by the COMELEC is valid under the law, citing the Rules on Electronic Evidence. It also pointed out that in Archbishop Capella v . COMELEC, 687 Phil. 617 (2012),  it had already recognized that the PCOS machines provide digital signatures. Also in Bagumbayan Movement, Inc. v. COMELEC, 782 Phil. 306 (2016), it ordered the COMELEC to enable the vote verification feature which printed the voter’s choices (“voter’s receipt”). The SC also found that the COMELEC has developed a system that resulted in the random selection of 234 sample clustered precincts. The SC clarified that the only undertakings promised to it by Chair Brillantes were first, to allow review after an interested party applies and complies with all the requirements for review; second,  to amend the relevant resolutions to allow interested parties more time to comply with the documentary requirements while mentioning that this would need to be implemented after the May 13, 2013 elections; and third,  that respondents would accommodate the petitioners’ request to review the source code. As to the first undertaking, while the SC ultimately found the guidelines promulgated by the respondents Brillantes and COMELEC  went against the law in allowing the source code review,  for purpose of indirect contempt, it found respondents discharged  their duty in making the same available for review. As to the second, it found that respondents promulgated Resolution No. 9657 to grant time to interested parties to comply with the documentary requirements. As to the third, it found that it was petitioners who failed to follow up on respondents’ initiative and invitation.