Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. (Emphasis supplied)
The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office is a public trust, institutionalized in the Constitution to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied x x x.
x x x The right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government. (Emphasis supplied)
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis supplied)
In determining whether or not a particular information is of public concern, there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because such matters directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. (Emphasis supplied)
The fact that a source code review is not expressly included in the Comelec schedule of activities is not an indication, as petitioners suggest, that Comelec will not implement such review. Comelec, in its Comment on the Motion for Reconsideration, manifests its intention to make available and open the source code to all political and interested parties, but under a controlled environment to obviate replication and tampering of the source code.10
Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case. (Emphasis supplied)
Section 52. Powers and functions of the Commission on Elections. - In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall:
(j) Carry out a continuing and systematic campaign through newspapers of general circulation, radios and other media forms to educate the public and fully inform the electorate about election laws, procedures, decisions, and other matters relative to the work and duties of the Commission and the necessity of clean, free, orderly, and honest electoral processes. (Emphasis supplied)
Section 5. Duties of Public Officials and Employees. - In the performance of their duties, all public officials and employees are under obligation to:
e) Make documents accessible to the public. - All public documents must be made accessible to, and readily available for inspection by, the public within reasonable working hours. (Emphasis supplied)
Section 3. Governing Principles on Government Procurement.
All procurement of the national government, its departments, bureaus, offices and agencies, including state universities and colleges, government -owned and/or-controlled corporations, government financial institutions and local government units, shall, in all cases, be governed by these principles:
(a) Transparency in the procurement process and in the implementation of procurement contracts.
(b) Competitiveness by extending equal opportunity to enable private contracting parties who are eligible and qualified to participate in public bidding.
(c) Streamlined procurement process that will uniformly apply to all government procurement. The procurement process shall be simple and made adaptable to advances in modern technology in order to ensure an effective and efficient method.
(d) System of accountability where both the public officials directly or indirectly involved in the procurement process as well as in the implementation of procurement contracts and the private parties that deal with government are, when warranted by circumstances, investigated and held liable for their actions relative thereto.
(e) Public monitoring of the procurement process and the implementation of awarded contracts with the end in view of guaranteeing that these contracts are awarded pursuant to the provisions of this Act and its implementing rules and regulations, and that all these contracts are performed strictly according to specifications. (Emphasis supplied)
SECTION 1. Declaration of Policy. - It is the policy of the State to ensure free, orderly, honest, peaceful, credible, and informed elections, plebiscites, referenda, recall, and other similar electoral exercises by improving on the election process and adopting systems, which shall involve the use of an automated election system that will ensure the secrecy and sanctity of the ballot and all election, consolidation, and transmission documents in order that the process shall be transparent and credible and that the results shall be fast, accurate, and reflective of the genuine will of the people. (Emphasis supplied)
Section 2. Use of Funds. - The amounts herein appropriated shall be used for the purposes indicated and subject to: (i) the relevant special and general provisions of Republic Act No. 9498, or the FY 2008 General Appropriations Act, as reenacted, and subsequent General Appropriations Acts, and (ii) the applicable provisions of Republic Act No. 8436, entitled: "An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11, 1998 National or Local Elections and in subsequent National and Local Electoral Exercises, Providing Funds Therefor and for Other Purposes", as amended by Republic Act No. 9369: Provided, however, That disbursement of the amounts herein appropriated or any part thereof shall be authorized only in strict compliance with the Constitution, the provisions of Republic Act No. 9369 and other election laws incorporated in said Act so as to ensure the conduct of a free, orderly, clean, honest and credible election and shall adopt such measures that will guarantee transparency and accuracy in the selection of the relevant technology of the machines to be used on May 10, 2010 automated national and local election. (Emphasis supplied)
SEC. 11. Section 9 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC.13. Continuity Plan. - The AES shall be so designed to include a continuity plan in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction, or nonperformance of the electoral process. Activation of such continuity and contingency measures shall be undertaken in the presence of representatives of political parties and citizen's arm of the Commission who shall be notified by the election officer of such activation.
"All political parties and party-lists shall be furnished copies of said continuity plan at their official addresses as submitted to the Commission. The list shall be published in at least two newspapers of national circulation and shall be posted at the website of the Commission at least fifteen (15) days prior to the electoral activity concerned." (Emphasis supplied)
"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, parties and candidates or their representatives, citizen's 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 minute 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." (Emphasis supplied)
- The nature and security of all equipment and devices, including their hardware and software components, to be used in the 10 May 2010 automated elections, as provided for in Section 714 of Republic Act No. 9369;
- The source code for review by interested parties as mandated by Section 1215 of Republic Act No. 9369;
- The terms and protocols of the random manual audit, as mandated by Section 2416 of Republic Act No. 9369;
- A certification from the Technical Evaluation Committee that the entire Automated Election System is fully functional and that a continuity plan is already in place, as mandated by Sections 917 and 1118 of Republic Act No. 9369; and
- The certification protocol and the actual certification issued by the Department of Science and Technology that the 240,000 Board of Election Inspectors all over the country are trained to use the Automated Election System, as required by Section 319 of Republic Act No. 9369.
Endnotes:
1 SEC. 11. Section 9 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC.13. Continuity Plan. - The AES shall be so designed to include a continuity plan in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction or nonperformance of the electoral process. Activation of such continuity and contingency measures shall be undertaken in the presence of representatives of political parties and citizen's arm of the Commission who shall be notified by the election officer of such activation.
"All political parties and party-lists shall be furnished copies of said continuity plan at their official addresses as submitted to the Commission. The list shall be published in at least two newspaper of national of circulation and shall be posted at the website of the Commission at least fifteen (15) days prior to the electoral activity concerned."
2 SEC. 3. Section 3 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC 3. Board of Election Inspectors. - Where AES shall be adopted, at least one member of the Board of Election Inspectors shall be an information technology-capable person, who is trained or certified by the DOST to use the EAS. Such certification shall be issued by the DOST, free of charge."
3 Legaspi v. Civil Service Commission, 234 Phil. 521 (1987).
4 Akbayan Citizens Action Party v. Aquino, G.R. No. 170516, 16 July 2008, 558 SCRA 468.
5 Id.
6 252 Phil. 264, 271-272 (1989).
7 Supra note 3 at 535.
8 Id.
9 G.R. No. 188456, 10 February 2010.
10 Respondent's Comment, pp. 19-20.
11 Supra note 9.
12 Supra note 3 at 533.
13 Section 2(1) of Article IX(C) of the Constitution.
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.
14 SEC. 7. Section 7 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC.6. Minimum System Capabilities. - "The automated election system must at least have the following functional capabilities:
(a) Adequate security against unauthorized access;
(b) Accuracy in recording and reading of votes as well as in the tabulation, consolidation/canvassing, electronic transmission, and storage of results;
(c) Error recovery in case of non-catastrophic failure of device;
(d) System integrity which ensures physical stability and functioning of the vote recording and counting process;
(e) Provision for voter verified paper audit trail;
(f) System auditability which provides supporting documentation for verifying the correctness of reported election results;
(g) An election management system for preparing ballots and programs for use in the casting and counting of votes and to consolidate, report and display election result in the shortest time possible;
(h Accessibility to illiterates and disable voters;
(i) Vote tabulating program for election, referendum or plebiscite;
(j) Accurate ballot counters;
(k) Data retention provision;
(l) Provide for the safekeeping, storing and archiving of physical or paper resource used in the election process;
(m) Utilize or generate official ballots as herein defined;
(n) Provide the voter a system of verification to find out whether or not the machine has registered his choice; and
(o) Configure access control for sensitive system data and function.
"In the procurement of this system, the Commission shall develop and adopt an evaluation system to ascertain that the above minimum system capabilities are met. This evaluation system shall be developed with the assistance of an advisory council."
15 SEC. 12. Section 10 of Republic Act No. 8436 is hereby amended to read as follows:
"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, parties and candidates or their representatives, citizen's 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 minute 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." (Emphasis supplied)
16 SEC. 24. A new Section 29 is hereby provided to read as follows:
"SEC 29. Random Manual Audit. - Where the AES is used, there shall be a random manual audit in one precinct per congressional district randomly chosen by the Commission in each province and city. Any difference between the automated and manual count will result in the determination of root cause and initiate a manual count for those precincts affected by the computer or procedural error."
17 SEC. 9. New Sections 8, 9, 10, and 11 are hereby provided to read as follows:
xxxx
"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:
18 SEC. 11. Section 9 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC.13. Continuity Plan. - The AES shall be so designed to include a continuity plan in case of a systems breakdown or any such eventuality which shall result in the delay, obstruction, or nonperformance of the electoral process. Activation of such continuity and contingency measures shall be undertaken in the presence of representatives of political parties and citizen's arm of the Commission who shall be notified by the election officer of such activation.
"All political parties and party-lists shall be furnished copies of said continuity plan at their official addresses as submitted to the Commission. The list shall be published in at least two newspapers of national circulation and shall be posted at the website of the Commission at least fifteen (15) days prior to the electoral activity concerned."
19 SEC. 3. Section 3 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC 3. Board of Election Inspectors. - Where AES shall be adopted, at least one member of the Board of Election Inspectors shall be an information technology-capable person, who is trained or certified by the DOST to use the AES. Such certification shall be issued by the DOST free of charge."
ABAD, J.:
When the Court took up this case on Tuesday, May 4, 2010, a number of Justices, including myself, voted to grant the petition provided that it would be revised to show that the Court makes no judgment that the Commission on Elections (COMELEC) has failed to comply with what Republic Act 8436 requires of it in the conduct of the May 10, 2010 Automated Election System or, if it failed in any way, that the COMELEC has no just reason for such failure or has taken no steps to remedy the situation.
The Justices with me had insisted that the Court's non-condemnation of the COMELEC be made clear. We did not want to add at this time to that body's woes or to exacerbate the public fear regarding the conduct of the country's first automated election. I believe that every responsible citizen should help make a success of the election scheduled four days from today. If it fails, despite all the cooperation given the COMELEC, then that would be the time to inquire why it failed and make those who contributed to such failure account for their actions or omissions, a role that does not belong to the Supreme Court.
Unfortunately, I am not satisfied that the opinion of the Court as revised after the voting reflects the revisions that some of the Justices who voted conditionally envisioned. Surely this is not the fault of the ponente but a divergence of view regarding how best to write what the Court collectively thinks. Still I cannot join the majority opinion for this reason.
Since the shortness of time does not permit me to elaborate on this dissenting opinion as I would like to, I reserve the right to submit a supplemental dissenting opinion later on.
CORONA, J.:
Aware of its distinct role in the constitutional scheme, the Court declared "judicial supremacy is never judicial superiority (for it is co-equal with the other branches) or judicial tyranny (for it is supposed to be the least dangerous branch)."1 Rather, it is the conscious and cautious awareness and acceptance of the Court's proper place in the overall scheme of government with the objective of asserting and promoting the supremacy of the Constitution.2
Regrettably, the majority opinion may have either inadvertently overlooked the duty of self-consciousness imposed by the Court upon itself or overeagerly sidestepped such duty at the expense of an independent constitutional body, the Commission on Elections (COMELEC). In any case, the Court may have scored positive points3 with the public but trespassed on the constitutional prerogatives of the COMELEC. At the same time, the ponencia may have also wittingly or unwittingly contributed to the very problems that it was supposed to be addressing.
Thus, I dissent.
Mandamus is a remedy in cases where any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station.4 For mandamus to lie, the duty must not only be ministerial but must also be a duty enjoined by law, a duty which the tribunal or person unlawfully neglects to perform.5 Before mandamus is issued, the following requisites should be satisfied:
(1) petitioner must show a clear legal right to the act demanded; thus, it will never be issued in doubtful cases;6
(2) respondent must have the duty to perform the act because the same is mandated by law;
(3) respondent unlawfully neglects the performance of the duty enjoined by law;
(4) the act to be performed is ministerial, not discretionary and
(5) there is no other plain, speedy and adequate remedy in the ordinary course of law.7
[I]n the matters of the administration of the laws relative to the conduct of elections, we must not by any excessive zeal take away from the [COMELEC] the initiative which by constitutional and legal mandates properly belongs to it.10
Endnotes:
1 Dueñas, Jr. v. House of Representatives Electoral Tribunal, G.R. No. 185401, 21 July 2009, 593 SCRA, 316.
2 Id.
3 In layman's term, this is simply a "pogi point." However, it is not the business of the Court to win public approbation. Indeed, the Court is a counter-majoritarian force. Its duty is to provide a check to the possible excesses of the majority.
4 Section 3, Rule 65, Rules of Court.
5 Id.
6 Pefianco v. Moral, 379 Phil.468 (2000).
7 Section 3, Rule 65, Rules of Court.
8 State Prosecutors v. Muro, A.M. No.RTJ-92-876, 19 September 1994, 236 SCRA 505.
9 Section 2(1), Article IX-C, Constitution.
10 Sumulong v. COMELEC, 73 Phil. 288 (1924).
11 In particular, petitioners pray that the Court order the COMELEC to provide them with the "official and complete details" of (a) the status of its negotiations for election supplies and paraphernalia, including contracts that did not undergo the bidding process; (b) the nature and security of the machines, memory-card, and other software and facilities to be used for the May 10, 2010 automated elections, including its current anti-hacking/tampering strategy over the votes and the electoral results; (c) the content of the source code review mandated by RA 9369, and terms and modes of access by the public to said source code; (d) the schedule, venue, and specifications of the random manual audit mandated by RA 9369; (e) the terms and protocols under which manual voting would be implemented in case failure of elections is to be declared; (f) its readiness to shift to manual voting and the details adopted to ensure that the results cannot be manipulated under a Garci type of operation; (f) a certification from the Technical Evaluation Committee that the entire automated election system (AES) is 100% fully functional and that a continuity plan is already in place pursuant to Section 11 of RA 9369; (g) a certification protocol and the actual certification issued by the Department of Science and Technology (DOST) certifying that the 240,000 board of election inspectors (BEIs) all over the country are trained to use the AES as required by Section 3 of RA 9369 and (h) the status of investigations and prosecutions of the offenders behind the procurement scandals besetting the commission of late, including those mentioned in the petition.
12 Systems Plus Computer College of Caloocan City v. Local Government of Caloocan City, 455 Phil. 956 (2003).
13 In particular, the COMELEC is ordered to produce the following information: (a) the nature and security of all equipment and devices, including their hardware and software components, to be used in the May 10, 2010 automated elections, as provided for in Section 7 of RA 9369; (b) the source code and the modes by which any interested political party or group may conduct its own source code review, as mandated by Section 12 of RA 9369; (c) the terms and protocols of the random manual audit, as mandated by Section 24 of RA 9369; (d) a certification from the Technical Evaluation Committee that the entire AES is fully functional and that a continuity plan is ready in place, as mandated by Sections 9 and 11 of RA 9369 and (e) the certification protocol and the actual certification issued by the DOST that the 240,000 BEIs all over the country are trained to use the AES, as required by Section 3 of RA 9369.
14 This point is made only to meet the ponencia in its own level and to show the absurdity of its consequences even based on its own premise. Therefore, this should not be taken to be contradictory to the position made earlier in this opinion that it was improper to issue a writ of mandamus based solely on media accounts.