MANILA - The Department of Justice (DOJ) has ordered the indictment of several Smartmatic and Commission on Elections (Comelec) personnel for changing the script in the election transparency server on election night during the May 2016 national and local polls.
Ordered charged in court for violations of Republic Act No. 10175, also known as the Cybercrime Prevention Act, are Marlon Garcia, head of the Smartmatic Technical Support Team, his subordinates Neil Baniqued and Mauricio Herrera, and Comelec information technology personnel Rouie Peñalba, Nelson Herrera, and Frances Mae Gonzales.
They were ordered charged specifically for illegal access, data interference, and system interference, all penalized under Section 4 (a) (1), (3), and (4) of the law.
In a 41-page resolution of a petition for review, the DOJ, through Undersecretary Deo Marco, reversed the findings of the Manila City Prosecutor’s Office which dismissed the complaint filed by Jonathan dela Cruz, former ABAKADA party-list Representative and campaign adviser of then vice-presidential candidate and former Senator Ferdinand “Bongbong” Marcos, Jr., against the six individuals and another respondent, Elie Moreno, Smartmatic general manager and project director, who was stationed at the National Technical Support Center (NTSC) in Quezon City.
While moving to indict six of the accused, the DOJ affirmed the dismissal of charges against Moreno "for lack of any allegation attributing any act of participation constituting a violation of the provisions of the Cybercrime Prevention Act."
The DOJ said there was no offense ascribed to him and that he was charged merely by reason of his position.
As to the other accused, the DOJ said they were able to access the transparency server to make changes without making the required notification to, and authorization from, the Comelec en banc.
“[T]he Comelec IT personnel at the [Parish Pastoral Council for Responsible Voting] center had no authority to allow any Smartmatic personnel to tweak the script of the transparency server," said the resolution.
The PPCRV is an election monitor authorized to undertake an unofficial count of election results through a transparency server.
“[T]he failure of the respondents to secure the authorization of the Comelec en banc before they made a change on the script of the transparency server is against the protocol. And not only that, said act is an offense under Sections 4 (a) (1), (3), and (4) of [RA No. 10175]," the resolution read.
While Comelec representatives entered the commission’s half of the password to initialize the system of the transparency server, the DOJ said any change on the script must have the authorization from the Comelec en banc, as stated in the “Protocol of Escalation.”
Respondents claimed that the change effected on the script was merely “cosmetic,” pertaining to alterations made on certain characters in some candidates’ names.
The DOJ, however, stressed that the language of the Cybercrime Prevention Act was clear, in that any illegal or unauthorized access to a computer or any part thereof was a violation of the said law.
It said there was no need to show any criminal intent to establish the commission of the offense. The DOJ explained that good faith was “immaterial” as the commission of the prohibited act was itself a crime under the law.
The review resolution, the DOJ explained, was limited to determining whether the alleged acts of access or interference were done by respondents without authority. It did not discuss the impact, if any, of the act on the votes obtained by the candidates.
The change in the transparency server script is among grounds raised by Marcos in his poll protest against Vice President Leni Robredo, claiming it was used as a tool for election fraud.
Marcos’ camp welcomed the DOJ ruling.
“This is a most welcome development because the unauthorized change they introduced in the script of the transparency server indeed undermined the credibility of the elections. It was only after the script was changed that the results for the vice-presidential race began to change at a uniform rate of 40 to 1, which was statistically impossible," said Vic Rodriguez, spokesman for Marcos.
"This is a victory for the Filipino people, especially those whose votes were not counted on election day,” he said.