BBM camp deplores Smartmatic for seeking media ban in "clarificatory presentation" of the AES

14 July 2016

The camp of former Senator Ferdinand “Bongbong” Marcos Jr. today deplored the move of Smartmatic to exclude members of the media from its “clarificatory presentation” of the Automated Election System before Manila Prosecutors’ Office.

This developed after Smartmatic personnel, instead of filing their Rejoinder to the complaint filed against them, filed a manifestation and motion to hold a clarificatory presentation to explain the AES and the other technical aspects of the case without the presence of any other party including the media.

Lawyer Adrian Aumentado, counsel of former Abakada Rep. Jonathan Dela Cruz, political advisor of Senator Marcos, said it is highly irregular why Smartmatic would want to ban the media from attending the clarificatory presentation of the AES when the case filed is all about transparency.

“To exclude the media from the clarificatory presentation is tantamount to denying the public's right to know the processes used in THEIR election. We are for transparency and that is what this case is all about and we just find it highly unusual that the media would be excluded from such presentation when it is after all a clarificatory hearing,” Aumentado pointed out.

During the hearing, the panel of prosecutors also expressed surprise by such move. When a member of the Smartmatic team said they were merely concerned about the logistical and practical requirements if members of the media were around, the panel said such would not be a problem since they can always arrange for a place for everyone including the media to be accommodated.

Aumentado also expressed surprise that Smartmatic would be the one to initiate a clarificatory presentation when the initiative should be coming from the panel of prosecutors. He also asked to be given a period to file their opposition and/or manifestation to the motion.

The panel, however, said the move would give them a chance to clarify certain technical aspects of the case without prejudice to whatever motion the former Senator’s counsels may file on the matter. They then set the clarificatory presentation to July 21, 2016 at 1:30 p.m.

Dela Cruz had filed charges for violation of Section 4(a) of the Cybercrime Prevention Act of 2012 or R.A. 10175 against Smartmatic personnel Marlon Garcia, a Venezuelan national and head of the Technical Support Team; Elie Moreno, an Israeli national and Project Director, Mauricio Herrera, a Panamanian national and Neil Banigued, member of the Technical Support Team; and Comelec IT experts led by Rouie Peñalba, Nelson Herrera and Frances Mae Gonzalez for their act of “intentionally altering computer data, without right and altering and interfering with the functioning of a computer and computer network by inputting, deleting and altering computer data and program, without right or authority.”

Dela Cruz said their act of changing the script of the Transparency Server on the night of the elections at the height of the transmission of votes without authority constitutes a clear violation of the said law.

Dela Cruz had earlier also accused the respondents of misleading the prosecutors when they claimed in their respective counter-affidavits that the change they made in the system in the Transparency Server cannot be considered illegal access because the latter is not part of the Automated Election System (AES).

“By so doing, respondents are attempting to mislead this Honorable Office thru technical illustrations irrelevant to the present controversy,” Dela Cruz said. He said such contradicts their earlier admission that “the AES is made up of several components, namely the election management system (EMS), the VCM, the CCS and the Transparency Server.”

Dela Cruz added that respondent also “deliberately omitted” the fact that RA 8436 as amended or the law authorizing Comelec to use the AES had expanded the definition of the system to include the “transmission of election results and other electoral processes.”

The respondents are also charged with a separate case for the violation of the Automated Election Law before the Comelec over the script change. The case is also undergoing preliminary investigation.