BBM camp eyes immediate resolution of the cybercrime complaint against Comelec and Smartmatic personnel with their 'admissions'

4 July 2016

The camp of Senator Ferdinand “Bongbong” Marcos Jr. is eyeing the immediate resolution of the complaint for violation of the Cybercrime Law given the “admissions” of the Commission on Elections (COMELEC) and Smartmatic personnel that they introduced changes in the script of the Transparency Server without authority on the night of the elections.

In an interview at the Manila Prosecutors’ Office after submitting his Consolidated Reply to the counter-affidavit submitted, former Abakada partylist Rep. Jonathan Dela Cruz, campaign adviser of the camp Sen. Marcos, said with the admissions of the respondents in the case, the issues of the cases have become simple and straightforward that there should be no delay in its resolution.

“Simple lang naman ang kasong ito kasi dalawang tanong lang yan. Did you tinker with the system and they admitted that they tinkered with the system. Since they admitted that they tinkered with the system the next question is did you have any kind of authority to tinker with the system? Wala silang authority kaya they violated the Cybercrime law…We will request that this be submitted for resolution,” he said.

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.”

The continuation of the preliminary investigation had been set to July 14 with the submission of the respondents of their rejoinder. Dela Cruz, however said that they will thereafter move for the resolution of the case and will not entertain any motion for extension.

The former lawmaker also bared in his 22-page Consolidated Reply that based on the evidence they gathered, including the counter-affidavits of his co-respondents, it was Peñalba who instigated the change in the script without informing the Comelec or any of the commissioners of the proposed change and seek authorization.

Dela Cruz also accused the respondents of misleading the prosecutors when they claimed in their respective counter-affidavits that their interference in the script of the Transparency Server cannot be considered illegal access because the latter are 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 as he cited 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.”

He also disputed the argument of the respondents that the offenses in the Cybercrime Law are mala in se (wrong in itself) so that good faith can be a defense. He argued that the offenses, based on the legislative deliberations on the said law, are mala prohibita (wrong prohibited) which means that criminal intent need not be established.

“(The violations under Section 4 of the Cybercrime Law) are mala prohibita. Indubitably, the mere access or interference without authority or right is an offense against the confidentiality, integrity and availability of computer data and systems. This intention of the legislature can be inferred when it deleted the word ‘intentional’ as an element of the cybercrime offense of Illegal Access, while maintaining the word ‘reckless’ for those of Data Interference and System Interference,” he pointed out.