Comelec, Smartmatic personnel face raps over script change

MANILA, Philippines -  The Department of Justice (DOJ) has approved the indictment of an official of Smartmatic, service provider of the Commission on Elections (Comelec), over the unauthorized change of script in the transparency server during the May 2016 automated elections.

In a 42-page resolution released yesterday, the DOJ found probable cause to charge Marlon Garcia, chief of the Smartmatic technical support team, for violating Republic Act 10175 or the Cybercrime Prevention Act.

Aside from Garcia, the DOJ also ordered his men Mauricio Herrera and Neil Baniqued as well as Comelec information technology (IT) experts Nelson Herrera, Frances Mae Gonzales and Rouie Penalba indicted for unauthorized access of the computer system and intentional and reckless altering of data.  

The camp of former senator Ferdinand Marcos Jr. welcomed the DOJ ruling, saying it is a vindication on their part.

“It shows that we were right all along, that indeed there was an unauthorized access to the system during the critical hours of the canvassing,” lawyer Vic Rodriguez, Marcos spokesman, told The STAR.

Rodriguez said the unauthorized change in the script of the transparency server undermined the credibility of the elections. 

The DOJ reversed an earlier ruling of the Manila City Prosecutor’s Office dismissing a complaint filed by former Abakada representative Jonathan de la Cruz in June last year.

The justice department said the respondents failed to present evidence that they were authorized by the Comelec to change the script in the transparency server.

“This was not only against protocol but was also patently illegal. Marlon Garcia admitted that he made the change in the script of the transparency server as advised by Mauricio Herrera. Notably, it was Comelec IT expert Rouie Penalba who notified the Smartmatic personnel,” read the resolution signed by Justice Undersecretary Deo Marco.

The DOJ said Penalba could not be absolved from the crime, noting his inconsistent statements.

It said Penalba first admitted that he instructed Garcia to change the system and later changed his story, claiming 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 DOJ said. ?The justice department rejected the explanation of the Smartmatic personnel, who said they merely carried out “cosmetic change” that could not affect the results of the elections.

The DOJ said the respondents’ actions constitute an offense against the confidentiality, integrity and availability of computer data and its system.

It said the respondents committed an offense when they accessed the transparency server without notifying the Comelec and for failing to report the script change after it was carried out.

“It took the respondents 24 hours to make a report when the parties were alerted of what happened,” the DOJ said.      

In his complaint, De la Cruz said that shortly after the script of the transparency server was altered, the lead of Marcos Jr. over his closest rival, now Vice President Leni Robredo, started to taper at a uniform rate until he was overtaken.

The prosecutor’s office dismissed De la Cruz’s complaint, prompting him to file an appeal for a review of the case before the DOJ.

Poll reform advocates also welcomed the DOJ ruling, saying it validated their assertion that the mismanagement of the elections cast doubt on the credibility of poll results at the national and local levels.

In a statement, Kontra Daya convenor Danilo Arao urged the DOJ to expand its investigation and include not just the personnel but the officials of Smartmatic and Comelec, especially Chairman Andres Bautista.

Former Comelec commissioner and convenor of Automated Election System Watch Augusto Lagman said those behind the changing of the script should be held accountable because their actions had cast doubt on the election process.

 Lagman said it’s time to ban Smartmatic from the country’s future elections.