"xxx.
Petitioners are not entitled to
the Writ of Mandamus to compel
COMELEC to once again open up
the source code review for the
upcoming elections immediately
for the review of the petitioners
and other similarly situated
parties, as the same has ceased to
become a justiciable controversy
and has become moot and
academic.
As the thrust of its Petition for a Writ of Mandamus, the petitioners firmly advance their narrative that the COMELEC failed to comply with Section 14 of R.A. No. 8436, as amended by Section 12 of R.A. No. 9369 The brunt of the petitioners' grievances lies in the alleged procrastination and negligence in both obtaining the source code, as well as the delay in making the same available for review to all concerned.41 This delay is attributed to the requirements for review as found in the assailed resolutions issued by the COMELEC, which go against the mandate of R.A. No. 8436 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."
By introducing requirements deemed as difficult to obtain and fulfill before the source code would be reviewable by an interested party, the petitioners advocate that the respondents, in effect, ensured that the source code could not promptly be made reviewable, which would then go against the express provisions of the pertinent statute. Thus, the petitioners pray for Mandamus that would direct the COMELEC to allow the source code review even if there is a lack of compliance or even complete non-compliance for the requirements for review as promulgated by the COMELEC.
To counter the petitioners' claim, the respondents put forth the defense that the strict nature of the guidelines is necessary in order to safeguard the process, and that the COMELEC has the power to regulate the conduct of the review through its guidelines.42
The respondents also posit the view that Resolution No. 9651, being the product of official acts, enjoys the presumption of regularity which all parties interested in reviewing the source codes must observe.43
As a matter of great importance, the Court takes judicial notice44 of the recent Resolution No. 10423 promulgated on September 21, 2018, or the Guidelines on the Conduct of the Local Source Code Review of the Automated Election Systems for the 13 May 2019 National and Local Elections by Interested Parties and Groups.
As a result of this new issuance, the dictates of procedural due process behoove the Court to dismiss the prayer for the Writ of Mandamus as to the source code. The Court holds that there has ceased to be a justiciable controversy.
A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for judicial determination, not one that is conjectural or merely anticipatory.45 In relation to the foregoing, a case is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical value, and as a rule, courts decline jurisdiction over such a case, or dismiss it on ground of mootness.46
The reasoning behind the dismissal of a case for being declared moot and academic is clear. Especially for pragmatic reasons, courts will not determine a moot question in a case in which no practical relief can be granted.47 It is deemed unnecessary to indulge in an academic discussion of a case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in the nature of things, cannot be enforced.48
In this case, the supervening event is found in the superseding of the assailed resolutions on the source code review with a new resolution, which pertains to the source code review for the upcoming 2019 elections. In Resolution 10423, it is observed that the COMELEC modified the qualifications for the local source code reviewer, to wit:
Sec. 5. Qualifications. The source code reviewer must be duly-authorized by the interested party or group and must be knowledgeable in computer programming languages and must be able to understand computer language preferably on the following programming languages and systems: C/C++, Java application development, Bash, Object Oriented Programming Language, Unix-like systems, and linux operating system.
The prescribed qualification is to ensure that the code reviewer can understand and appreciate the source codes of the AES to be reviewed. The interested parties and groups are expected to choose their reviewers based on this consideration.
Sec. 6. Number of Reviewers; Limitations. Each interested party or group may appoint primary and secondary code reviewers for each system. However, depending on the availability of space at any given time, each party or group may be limited to field only one (1) qualified reviewer at a given time.
The Court also observes that the application process contained in Resolution No. 10423 contains several steps before an interested party may actually get around to reviewing the source code. To wit:
IV. APPLICATION FOR THE LOCAL SOURCE CODE REVIEW
SEC. 7. Procedure. The interested party or group must submit a written request addressed to the Local Source Code Review Ad-hoc Committee signifying its intent to participate including its attachments. The written request must be signed by the duly-authorized representative of the party or group.
SEC. 8. Written Request; Contents. The written request shall contain the following details:
i. Name of the interested party or group;
ii. Intent to participate in the conduct of the local source code review;
iii. Name of the local source code reviewer/s and the latter's credentials;
iv. Signature of the duly-authorized representative of the interested party or group.
For this purpose, interested parties and groups shall completely fill-out Annex "A" of this resolution.
SEC. 9. Annexes to the written request. The written request shall attach the resume of the local source code reviewer specifically mentioning his or her experience in computer programming or related field. Said resume shall be under oath.
For IT Groups, a favorable recommendation from the CAC and/or the DICT shall also be attached.
For Civil Society Organizations, a brief summary of the electoral reforms initiated or supported shall also be attached.
In the event that the interested parties or groups cannot submit the complete requirements, a reasonable explanation must also be attached.
SEC. 10. Approval. All requests filed within the specified period shall be subject to the approval of the Local Source Code Review Ad-hoc Committee. The approval or denial shall be based on the following:
i. Request and its attachments;
ii. Presence of Qualifications;
iii. Date and time of the request received, if applicable; and
iv. Availability of slots/space in the source code review room.
The approval or denial of the request shall be sent to the e-mail address of the interested party or group used in the application.
The approval of the request shall also be posted in the official website of the Commission on Elections.
As this Resolution No. 10423 now governs the conduct of the upcoming elections, and any automated election from here on out unless it, itself, is superseded by another, the cause of action of the petitioners has ceased to exist.
Despite its aforementioned misgivings about the conduct of the COMELEC at the time the consolidated petition was filed, the Court cannot turn a blind eye to this important development in the case's factual milieu, the issuance of the new Resolution No. 10423. Thus, as to the source code review, with a mention that the COMELEC should be more circumspect when it comes to its rule-making power, the Court rules that the claims of the petitioners are moot and academic.
Xxx."
BAGUMBAYAN-VNP MOVEMENT, INC., AND RICHARD J. GORDON, ON HIS BEHALF AND ON BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES SIMILARLY SITUATED, Petitioners, vs. COMMISSION ON ELECTIONS, Respondent. G.R. No. 206719, April 10, 2019.
