Comelec, Smartmatic face charges for changing 2016 election server script

Patty Pasion

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Comelec, Smartmatic face charges for changing 2016 election server script

Alecs Ongcal

The justice department reverses the decision of the Manila Prosecutor’s Office, which didn't find merit in the complaint of Ferdinand Marcos Jr's camp

MANILA, Philippines – The Department of Justice (DOJ) ordered the filing of criminal charges against the Commission on Elections (Comelec) and vote-counting machine supplier Smartmatic for changing the script in the servers in the middle of results transmissions during the 2016 polls.

The DOJ decision, made public on Wednesday, June 7, reversed the decision of the Manila Prosecutor’s Office, which dismissed last September for lack of merit and insufficiency of evidence the complaint filed by the camp of former Senator Ferdinand Marcos Jr. 

In a 41-page resolution, the justice department found probable cause to charge Comelec and Smartmatic personnel for violating Republic Act 10175 or the Cybercrime Prevention Act. Specifically recommended for charges are Smartmatic technical support team head Marlon Garcia and his officers Neil Baniqued and Mauricio Herrera, as well as Comelec IT specialists Rouie Peñalba, Nelson Herrera, and Frances Mae Gonzales. 

Marcos’ campaign adviser, former Abakada Representative Jonathan dela Cruz, elevated the case to the DOJ in November. Dela Cruz was the one who filed the case, together with Marcos’ lawyer Jose Amorado. 

Criminal intent not necessary

The DOJ denied Comelec’s defense that the script change was for cosmetic purposes and did not affect the election results. The change in the script was due to the need to correct the items with “ñ” appearing as “?”. 

The DOJ said RA 10175 was a special law that does not require criminal intent. 

“Criminal intent is not necessary where the acts are prohibited by reason of public policy. The mere perpetration thereof constitute an offense against the confidentiality, integrity, and availability of computer data and systems. When the doing of the act is prohibited by law, it is considered injurious to public welfare, and the doing of the prohibited act is the crime itself,” the ruling stated. 

They also dismissed Smartmatic’s argument that the Protocol of Escalation gave them the authority to execute the necessary changes without clearance from the Comelec since they only needed to fix a glitch in the system.

The DOJ said the protocol requires Smartmatic representatives to report any issue to a designated Comelec personnel. 

“It was established that respondents [were] able to access the transparency server to change the same without notifying the Comelec en banc. It must be noted that the Comelec IT personnel assigned at the PPCRV center had no authority to allow any Smartmatic personnel to tweak the script of the transparency server,” said the ruling.

The ruling also noted that Smartmatic and Comelec did not report the change immediately after it was carried out.

Garcia’s admission that he altered the script in the transparency server is also enough evidence to indict him for the unauthorized change, the resolution said. 

Meanwhile, Peñalba could not be absolved from the case because he had inconsistent statements when he said he instructed Garcia to implement the changes but later claimed that Smartmatic had authority to do it. 

Marcos election case 

The issue on the script change that altered the hash codes in the servers was among Marcos’ main arguments when he accused the Liberal Party and Vice President Leni Robredo of rigging the elections. 

His camp has insinuated cheating when Robredo suddenly took the lead in the unofficial canvassing of votes after the code was changed.

Marcos initially led the race on election night, but the LP bet took the top spot at around 3:45 am.

Robredo emerged as the winner in the vice presidential race, leading Marcos by only 200,000 votes-plus.

On June 29, 2016, Marcos filed an election case against Robredo. The Supreme Court, which sits as the Presidential Electoral Tribunal, has set the preliminary conference for the case for July 11. – 

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Patty Pasion

Patty leads the Rappler+ membership program. She used to be a Rappler multimedia reporter who covered politics, labor, and development issues of vulnerable sectors.