The camp of defeated vice presidential candidate Ferdinand "Bongbong" Marcos Jr. on Friday asked the Department of Justice (DOJ) to review the Manila Prosecuter's Office decision clearing the cybercrime charges against personnel from the Commission on Elections (Comelec) and technology service provider Smartmatic.
"Our client intended to file as he did file an appeal from the resolution dismissing the cases against the Comelec and Smartmatic respondents," lawyer Adrian Aumentado, a representative from Marcos' camp who filed the 29-page petition, told reporters.
In a decision dated Sept. 28, the Manila Prosecutor's Office cleared three Smartmatic personnel and one Comelec information technology officer of liability in the script change in the transparency server during the May 2016 elections for lack of sufficient evidence.
These include Smartmatic technical support team head Marlon Garcia, project director Elie Moreno, team member Neil Banigued, and Comelec information technology officer Rouie Peñalba.
Charges filed against Smartmatic's Mauricio Herrera and Comelec personnel Nelson Herrera and Frances Mae Gonzales were also dismissed for lack of merit.
"At the very least, given Mr. Garcia's admission and the Comelec commissioner's statements denying his authority to change the script, Mr. Garcia should have been indicted for a cybercrime violation," Aumentado said.
'Committed grave error'
In a statement regarding the petition, Marcos' campaign adviser Jonathan dela Cruz said the Manila Prosecutor's Office "committed grave error" by completely disregarding the evidence he submitted for insufficiency.
He had earlier filed a complaint against Smartmatic and Comelec personnel for their unauthorized replacing of '?" to "ñ" in the transparency server during the transmission of votes on the night of May 9, 2016.
The Manila Prosecutor's Office dismissed this complaint as it "falls very much short of the quantum required to constitute probable cause for the crime charged."
“The act of 'tweaking' the script of the Transparency Server caused widespread anxiety and concern amongst the nation. The lapses in protocol have undermined the credibility and integrity of the 2016 NLE and pertinently, the confidentiality, integrity and availability afforded to computer data and systems,” said Dela Cruz.
Dela Cruz aargued that the Cybercrime Prevention Law is a special law of mala prohibita, "where intent or good faith is immaterial."
“(A) perusal of the records of the Senate deliberations will show that (then) Senate President (Juan Ponce) Enrile proposed to remove the word 'intentional' in the definition of the cybercrime offenses…. (He) propounded that it is enough that such acts are made without right or justifiable reason,” Dela Cruz said.
"With these crimes, the sole issue is whether the law has been violated. Criminal intent is not necessary where the acts are prohibited for reasons of public policy," the petition read.
Dela Cruz, a former lawmaker representing Abakada party-list, also argued that the Manila Prosecutor's Office "may have overlooked the fact that the change was committed without right or authority as declared by COMELEC Commissioners," saying that this is punishable under the Cybercrime Prevention Law.
The Comelec admitted the script of the transparency server was tweaked, but only to correct the “?” character into “ñ” that appeared in the names of some candidates. The poll body added that the script change did not affect the results of the elections.
Aumentado, meanwhile, said they are leaving it to the DOJ to decide on their petition.
"In any case, it's up to the DOJ," Aumentado said. —KBK, GMA News