MANILA, Philippines – Commission on Elections (Comelec) Chairman Sixto Brillantes concedes that the credibility of the elections may be put to question because of the absence of a precinct count optical scan (PCOS) source code review by political parties and other interested groups.

Brillantes said this is why he is still working to get the source code, the human readable instruction which runs the PCOS machines, from independent certifier Systest Labs Inc. (SLI).
 
"True, there will be questions on credibility but that's not on the legality to proceed…because binary is with us already. Tuloy ang eleksyon. If people will say it will not be credible because of the absence of the source code, that's an issue we can address post election. But we proceed with elections. The law doesn't allow manual,” he said.

Brillantes explained that questions on credibility can be addressed later before the Joint Congressional Oversight Committee.

"With the report of the TEC [Technical Evaluation Committee] that everything is OK, the TEC certification is certification of experts, ‘yan na ho ang justification,” he said.

Brillantes earlier said the Comelec's TEC already has the source code review of SLI but the source code itself remains with SLI because of the legal dispute between rival election suppliers Smartmatic and Dominion.

"SLI certification is--the source code has been verified, checked and there’s independent certification that source code is OK…SLI wouldn't give source code because it would require consent of software owner Dominion."

Brillantes explained that the automated election law requires 2 source code reviews: One from an independent certifier, in this case, SLI, and another, that it be made available to political parties and other interest groups for their own review.

"Yes, hiwalay. The most important certification is the independent certification of SLI. It's already there. It's finished. Precisely, TEC said andiyan na ang certification of SLI, source code couldn't be brought to the Philippines because SLI restrained by Dominion, that’s why the statement now is regardless whether source code would come or not, source code is there, it's existing, the only deficiency is it could not be subjected to review by political parties,” he said.

The source code review of an independent certifier is a necessary document to the certification of the TEC, which is required 90 days before the elections.

Brillantes said they have complied with the requirements of the law insofar as the TEC is concerned.

"I'm still working on it but I am anticipating there's a possibility the source code won't be brought here. Nothing in law says that without the source code, we couldn't proceed," he said.

Election watchdog Lito Averia of transparentelections.org.ph is however doubtful of the poll body's compliance with all of the requirements the law.

Averia isn't satisfied by SLI's certification.

In a statement, he said, "SLI certified source code for 2010 yet among the claims made by Smartmatic vs Dominion is that the cause of the CF card fiasco is a problem with the software. This indicates that SLI did not do a good job. How can we rely on SLI's certification? Review of the source code is a right enshrined in RA9369. Withholding the exercise of such right is a violation of law certification by an international certification entity like SLI is a separate requirement of law. Please note that certification by SLI is not a prerequisite to the exercise of the right granted to interested political parties and groups."

Asked if this means that he thinks the Comelec is not complying with all the requirements of the law, Averia said, "Yes. This has been the conclusion of Cenpeg studies."

Brillantes will soon meet with Dominion representatives to work on the release of the source code. He previously offered to put some $10 million in escrow just so that Dominion will release the source code.

Dominion and Smartmatic are locked in rival collection cases before a court in the US State of Delaware.

"They’re now trying to push and say ‘di bibigay source code if you don't pay us. Sabi ko, inyo na source code. The better solution is we get both source code and binary…’Di ko lang gusto na ginagamit hostage ang source code. Sabi ko inyo na ang source code, it’s not that significant. Better if we get it so all questions will be settled,” he said.

Republic Act 9369 reads:

"SEC. 11. Functions of the Technical Evaluation Committee. - The Committee shall certify, through an established international certification entity to be chosen by the Commission from the recommendations of the Advisory Council, not later than three months before the date of the electoral exercise, categorically stating that the AES, including its hardware and software components, is operating properly, securely, and accurately, in accordance with the provisions of this Act based, among others, on the following documented results:

1. The successful conduct of a field testing process followed by a mock election event in one or more cities/municipalities;

2. The successful completion of audit on the accuracy, functionality and security controls of the AES software;

3. The successful completion of a source code review;

4. A certification that the source code is kept in escrow with the Bangko Sentral ng Pilipinas;

A certification that the source code reviewed is one and the same as that used by the equipment; and

The development, provisioning, and operationalization of a continuity plan to cover risks to the AES at all points in the process such that a failure of elections, whether at voting, counting or consolidation, may be avoided.

On the other hand, the opening of the source code to another review by interested groups is a separate requirement.

The same law reads:

"SEC. 14. Examination and Testing of Equipment or Device of the AES and Opening of the Source Code for Review. - The Commission shall allow the political parties and candidates or their representatives, citizens' arm or their representatives to examine and test.

"The equipment or device to be used in the voting and counting on the day of the electoral exercise, before voting starts. Test ballots and test forms shall be provided by the Commission.

"Immediately after the examination and testing of the equipment or device, the parties and candidates or their representatives, citizens' arms or their representatives, may submit a written comment to the election officer who shall immediately transmit it to the Commission for appropriate action.

"The election officer shall keep minutes of the testing, a copy of which shall be submitted to the Commission together with the minutes of voting.

"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.”