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Comelec, Smartmatic cleared over server script change in May polls


The Manila Prosecutor's Office has cleared personnel of the Commission on Elections (Comelec) and technology provider Smartmatic over the cybercrime charges filed against them by the camp of defeated vice presidential candidate Ferdinand "Bongbong" Marcos Jr.

In a decision dated September 28, the Manila Prosecutor's Office dismissed charges against the following for insufficiency of evidence:

  • Smartmatic technical support team head Marlon Garcia,
  • Smartmatic project director Elie Moreno,
  • Smartmatic team member Neil Banigued, and
  • Comelec information technology officer Rouie Peñalba

Meanwhile, charges against Smartmatic's Mauricio Herrera and Comelec personnel Nelson Herrera and Frances Mae Gonzales were dismissed for lack of merit.

They were facing charges for allegedly violating Sections 4(a)(1), (3), and (4) of the Cybercrime Prevention Act (R.A. No. 10175).

The particular violations are defined by the law as:
    (a) Offenses against the confidentiality, integrity and availability of computer data and systems:
    (1) Illegal Access. – The access to the whole or any part of a computer system without right.
    (3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.
    (4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

Evidence 'falls very much short'

The 28-page decision, released this week, said evidence submitted by Marcos' campaign adviser and former Abakada party-list Rep. Jonathan dela Cruz "falls very much short of the quantum required to constitute probable cause for the crime charged."

The Manila Prosecutor's Office said Dela Cruz "failed to show convincing proof" that only the Comelec en banc may authorize the controversial tweak in the transparency server to change the special character "?" to "ñ".

It noted that Marcos' campaign adviser submitted as proof reports that Comelec commissioners Rowena Guanzon and Christian Robert Lim, head of the steering committee for the May polls, deplored that the change was made without the en banc's permission.

Aside from noting that such is "hearsay being mere news reports," the statements were personal comments of only two of the seven members of the en banc.

It also said Dela Cruz showed "no evidence at all" to support his claim that the tweak "caused widespread anxiety and concern amongst (sic) the nation."

'Could hardly be called criminal'

The Manila Prosecutor's Office said the act of replacing the "?" with "ñ," made by Garcia, "could hardly be called criminal" because there was no malicious intent.

"His intention was only to correct an abnormality in the spelling of the names of certain candidates as clearly borne out of the sequence of events," the decision read, adding that Garcia's reaction "can not be viewed as beyond obedience to a call of duty; hence far from being criminal."

It also said the act was not reckless since Garcia "studied the error to determine whether the sense is correctible without damaging the computer system or affecting the election process," and even consulted with Comelec personnel on the matter.

The Manila Prosecutor's Office also cleared the other respondents of being co-conspirators since they "were either merely present in the premises" at the time Garcia made. —KBK, GMA News