Comelec, Smartmatic officials face raps over ‘alteration’ in 2016 polls server

MANILA — The Department of Justice (DOJ) on Wednesday approved the filing of criminal charges against officials of the Commission on Elections (Comelec) and Smartmatic over the unauthorized alteration of a script in the transparency server during the canvassing of votes during the May 9, 2016 national and local elections.

In a 42-page resolution dated June 2 signed by Justice Undersecretary Deo Marco, the DOJ found probable cause to indict Comelec IT experts Nelson Herrera, Frances Mae Gonzales and Rouie Penalba and Smartmatic head of technical support team Marlon Garcia and his subordinates Mauricio Herrera and Neil Baniqued for violation of Sections 4 (a)(1), 3 and 4 of Republic Act 10175 or the Cybercrime Act of 2012.

The DOJ however junked the same complaint against Smartmatic project director Elie Moreno for lack of merit.

Section 4 (a)(1) of RA 10175 penalizes the access of a computer system without any authority while Section 3 penalizes the intentional and reckless altering of computer data.

On the other hand, Section 4 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.

“The Office of the City Prosecutor of Manila is directed to file the necessary Information for violations of Sec. 4(a)(1), (3) and (4) of the Cybercrime Prevention Act against respondents before the appropriate court and to report the action taken within 10 days from receipt, hereof,” the resolution said.

It will be recalled that former Abakada Rep. Jonathan Dela Cruz filed the complaint before the Manila City Prosecutor’s Office in June last year, accusing the respondents of intentionally altering the election data without any right or authority from the poll body or Smartmatic.

In his complaint, Dela Cruz said that shortly after the unauthorized alteration of the script of the transparency server, the lead of former senator Ferdinand “Bongbong” R. Marcos Jr. over his closest rival, now Vice President Maria Leonor “Leni” Robredo started to taper at a uniform rate until his lead was eventually overtaken.

But the prosecutor’s office dismissed the complaint, prompting Dela Cruz to elevate the matter to the DOJ through filing a petition for review.

In its resolution, the DOJ said the respondents failed to present evidence that it was given authority by the Comelec en banc allowing them to change the script in the transparency server.

“This was not only against protocol but was also patently illegal. Marlon Garcia, himself, admitted that he made the change in the script of the transparency server as advised by Mauricio Herrera. Notably, it was Comelec Information Technology expert Rouie Peñalba who notified the Smartmatic personnel,’ the resolution said.

It added that Penalba could not absolve himself of the crime because of his inconsistent statements, adding that at first he admitted that he instructed Garcia to change the system and then he changed his story and claimed that Smartmatic was authorized to access the system.

“Rouie Penalba, along with Frances Mae Gonzales and Nelson Herrera, as Comelec representatives assigned to the PPCRV Center and holding one half of the password to access the system, acquiesced to the access or interference effected by the Smartmatic personnel, beyond their authority,” the resolution said.

The resolution also dismissed the arguments of the Smartmatic personnel that what was carried out was merely a “cosmetic change” that did not affect the elections adding that RA 10175 is a special law and as such, it did not require criminal intent where the acts are prohibited by reason of public policy.

It stressed that the “mere perpetration thereof, constitute an offense against the confidentiality, integrity, and availability of computer data and systems. “

Furthermore, the DOJ belied Smartmatic’s defense that the so-called 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, adding that the protocol requires Smartmatic personnel to report on any issue regardless of level to a Comleec official or personnel.

The DOJ likewise faulted the respondents for accessing the transparency server to change the same without notifying the Comelec en banc and for failing to report the script change after it was carried out.

It added that it took the respondents 24 hours to made a report when the parties were alerted of what happened.

Sought for a comment, Atty. Vic Rodriguez, spokesperson of former Senator Ferdinand “Bongbong” R. Marcos Jr. lauded the resolution of the DOJ.

“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,” Rodriguez added.

The Presidential Electoral Tribunal has given 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 in May also year.

Robredo won the vice presidential race with 14,418,817 votes or 263,473 more than Marcos who got 14,155,344 votes.

On Tuesday, the Supreme Court sitting as the Presidential Electoral Tribunal (PET) rescheduled the preliminary conference of the electoral protest filed by Marcos Jr. against Vice President Robredo to July.

SC spokesman Theodore Te said the high court reset the preliminary conference from June 21 to July 11.

The SC spokesperson said both camps are also ordered to file their briefs at least five days before the date of the preliminary conference and serve the same on the adverse party.

“This is without prejudice to the Tribunal’s resolution of all remaining pending incidents,’ Te said of the decision.

Marcos earlier said he decided to file the electoral protest due to the series of frauds, anomalies and irregularities that marred the May 9 elections and that such activities made sure he would lose to Robredo, the vice presidential candidate of the Liberal Party. Christopher Lloyd T. Caliwan/