THE Department of Justice (DOJ) has found probable cause to charge for violation of cybercrime law against Commission on Elections (Comelec) and Smartmatic personnel over the tweaking of the script in the transparency server in the evening of the May 9 presidential elections.
In a resolution dated June 2, Justice Undersecretary Deo Marco recommends the filing of charges against Smartmatic head of the technical support team Marlon Garcia and his subordinates, Neil Baniqued and Mauricio Herrera, for violation of Sections 4(a)(1), (3) and (4) of Republic Act 10175 or the Cybercrime Prevention Act.
Also to be indicted for the same violations are Comelec information technology experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales.
The complaint filed against Smartmatic project director Elie Moreno, meanwhile, was dismissed for "lack of evidence".
The Comelec in the conduct of the polls in May 2016 admitted that a script has been tweaked in the Comelec's server to change "?" to "ñ".
Comelec chief Andres Bautista then assured the public that the "minor" change did not affect the vote results, contrary to the claims of the camp of then senator and vice presidential bet Ferdinand Marcos Jr.
Former Abakada Party-list Representative Jonathan Dela Cruz filed the complaint against the respondents in June 2016 before the Manila Prosecutor's Office (MPO). The prosecutor junked the case, prompting the lawmaker to seek the DOJ's intervention.
In reversing the MPOs findings, the DOJ ruled that the respondents failed to secure the required authorization from the Comelec en banc before changing the script in the transparency server.
The DOJ said this was not only against protocol but was also "patently illegal."
The DOJ further stated there was enough evidence to charge said respondents as Garcia himself admitted that he altered the script as advised by Herrera.
"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," it stated.
The DOJ in its resolution did not give weight to the claims of Smartmatic that the change was merely "cosmetic" and did not affect the elections.
It said that there is no need for an ill-intent for respondents to be held liable under the law.
"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 resolution read.
Marcos, in a statement on Wednesday, lauded the DOJ's 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. Everyone who was glued to their TV that fateful night could see this," Marcos' spokesperson Vic Rodriguez said.
Marcos, who has a pending petition before the Supreme Court questioning vote results in the last polls, earlier claimed that the alteration in the Comelec server's script was intended to increase the votes garnered by his rival then Camarines Sur Representative Leni Robredo.
The SC will conduct preliminary conference on his petition against Robredo on July 11. (SunStar Philippines)