The camp of former senator Ferdinand “Bongbong” Marcos Jr has elevated his cybercrime complaint versus election equipment supplier Smartmatic and the Commission on Elections (Comelec) to the Department of Justice (DOJ).
Marcos called on the DOJ to file criminal charges against Comelec and Smartmatic personnel over their supposedly unauthorised change in the system script of the “transparency server” at the height of the transmission of votes during the May 9 elections.
The cybercrime complaint is separate from Marcos’ protest of the results of the vice-presidential race, which he lost to former Camarines Sur representative Maria Leonor “Leni” Robredo.
In a 28-page petition for review, former Abakada party-list representative Jonathan de la Cruz, political adviser of Marcos, asked the DOJ to reverse the dismissal of the complaint by the Manila prosecutor’s office.
De la Cruz said the Manila prosecutor’s office committed grave error when it dismissed for insufficiency of evidence his complaint for violations of Section 4(a)(1), (3) and (4) of Republic Act 10175 or the Cybercrime Prevention Act, against Comelec information technology experts Rouie Penalba, Nelson Herrera and Frances Mae Gonzales and Smartmatic officials Marlon Garcia, Elie Moreno, Neil Baniqued and Mauricio Herrera.
De la Cruz had filed the complaint against the respondents for their supposedly unauthorised system change in the transparency server. The respondents were said to have replaced the character “?” appearing on some candidates’ names with “n” on the night of May 9.
“The act of ‘tweaking’ the script of the Transparency Server caused widespread anxiety and concern … The lapses in protocol have undermined the credibility and integrity of the 2016 elections and pertinently, the confidentiality, integrity and availability afforded to computer data and systems,” he said.
In dismissing his complaint, he said, the Manila prosecutor’s office completely disregarded evidence as well as admissions by the respondents that the script change happened.
The Manila prosecutor’s office had ruled there was no evidence the respondents committed the act in bad faith.
De la Cruz asserted that in the cybercrime law, based on deliberations in Congress, intent or good faith is immaterial.
By alleging that there was no damage caused by respondents in changing the script, the prosecutors might have overlooked the fact that the change was committed without authority from Comelec commissioners, an act punishable under the cybercrime law. De la Cruz also said all issues raised during the preliminary investigation conducted by Manila prosecutors would be best tackled in court.
The Manila prosecutor’s office “erred in concluding that the evidence falls very much short of the quantum required to constitute probable cause for the crime charged,” De la Cruz said.