THE Justice department has recommended the criminal indictment of officials of the Commission on Elections and Smartmatic for violation of the Cybercrime Prevention Act.
In a resolution, Justice Undersecretary Deo Marco found probable cause to charge Smartmatic’s Marlon Garcia, head of the Technical Support Team, and his subordinates Neil Baniqued and Mauricio Herrera as well as Comelec Information Technology experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales for violating the Cybercrime Prevention Act.
Lawyer Vic Rodriguez, spokesman of former Senator Ferdinand Marcos Jr., praised the resolution.
‘‘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, Rodriguez said.
“This is a victory for the Filipino people―especially those whose votes were not counted on election day.”
The Presidential Electoral Tribunal gave due course to the election protest filed by Marcos’ camp on June 29 last year, claiming that the camp of Robredo cheated in the automated polls.
Robredo won the vice presidential race with 14,418,817 votes or 263,473 more than Marcos who got 14,155,344 votes.
The Cybercrime Prevention Act penalizes the access to a computer system without any authority while Section 3 penalizes the intentional and reckless altering of computer data. Section 4, on the other hand, penalizes the act of hindering or interfering with the functions of a computer and computer network by inputting, deleting and altering computer data and programs without any right or authority.
But the department exonerated Smartmatic Project Director Elie Moreno for lack of evidence.
The case arose from the unauthorized alteration of the script of the transparency server during the canvassing of the votes during the May 9, 2016 national and local elections.
Justice Secretary Vitaliano Aguirre overturned the Sept. 28, 2016 resolution issued by the Office of the City Prosecutor of Manila that dismissed the case that was initiated by former Abakada Rep. Jonathan Dela Cruz.
In his complaint filed last year, Dela Cruz accused the respondents of “intentionally altering the election data without any right or authority.”
He said that, shortly after the unauthorized alteration of the script of the transparency server, the lead of vice presidential candidate Ferdinand Marcos Jr. over his closest rival, Leni Robredo, started to taper at a uniform rate, which experts said was statistically impossible.
Marcos’ huge lead of over one-million votes was eventually overtaken in the wee hours of the morning.
But the Manila City Prosecutor’s Office dismissed Dela Cruz’s complaint, prompting him to elevate his case to the Justice department through a petition for review.
In reversing the Manila City Prosecutor’s findings, the department ruled that the respondents failed to secure the required authorization from the Comelec en banc before changing the script in the transparency server.
The resolution said there was enough evidence to indict the accused for the unauthorized change in the system of the transparency server since Garcia himself admitted that he made the change in the script as advised by Herrera.
The department also rejected the claim of Smartmatic that what was carried out was merely a “cosmetic change” that did not affect the elections.
The department also disputed Smartmatic’s defense that the Protocol of Escalation, which involved contingency matters for escalation in particular levels of severity, gave them the authority to decide by themselves the course of action to be taken in case of any glitches in the system.
The department said the Protocol of Escalation “require(d) Smartmatic personnel to report on any issue regardless of level (severity or intensity) to a Comelec personnel or official.”
The department also cited the failure of Smartmatic and Comelec to report the script change immediately after it was carried. It said the alteration was not announced until after the lapse of 24 hours.
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