Complaint filed vs. Smartmatic and Comelec over script change now up for evaluation by poll body

28 July 2016

The complaint filed by the camp of former Senator Ferdinand “Bongbong” Marcos Jr. before the Commission on Elections against Smartmatic and Comelec personnel over the script change in the Automated Elections System is deemed submitted for evaluation after the period to file the last pleading had lapsed.

In an order dated June 30, 2016, the Comelec Legal Department ordered complainant, former Abakada Rep. Jonathan dela Cruz, political advisor of Senator Marcos, ten days or until July 11, 2016 to file his reply to the counter-affidavits filed by respondents, namely Smartmatic’s Marlon Garcia, head of Technical Support Team, Elie Moreno, Project Director and Neil Baniqued, member of the Technical Support, and Comelec IT personnel Rouie Peñalba.

The respondents were also given the same period to file their Rejoinder and the case will then be submitted for evaluation. Under the Rules of Procedure, the Legal Department has five days to evaluate the complaint filed and submit a recommendation which will then be approved by the Head of Office.

The Head of Office will then submit his recommendation to the Comelec En Banc for review and approval.

Dela Cruz had filed charges against the said respondents for violation of Section 35(b) and (c) of the Automated Election Law (R.A. 8436) for interfering with or altering any computer data, program, system software or any computer-related devices or facilities without right or authority.

The respondents had admitted changing the script of the Transparency Server on the night of the elections while transmission was ongoing.

In his 19-page Consolidated Reply, Dela Cruz said Peñalba had admitted that he did not give Smartmatic personnel permission to introduce changes in the script.

Dela Cruz said Peñalba, himself, in a Memorandum he submitted on May 12, 2016 to the Comelec En Banc declared that he neither had the authority to change the script nor gave any instruction to change the script.

“…..(R)espondent Peñalba, in his Urgent Memorandum dated 11 May 2016 submitted to the Comelec En Banc 12 May 2016, denied that he instructed respondent (Venezuelan Marlon) Garcia to change the script as he does not have the authority to do so. In such declaration, respondent Peñalba is estopped from denying the Smartmatic personnel were without authority when they changed the said script,” Dela Cruz said.

The respondents were also charged with a separate offense before the Manila Prosecutors’ Office for violation of the Cybercrime Law over the script change.

The said complaint is in the last stage of the preliminary investigation by a panel of prosecutors.

In the clarificatory hearing held last week, Garcia admitted before the panel of prosecutors of the existence of other servers in the AES aside from the three servers sanctioned by the Comelec.

Lawyer Vic Rodriguez, spokesperson of Senator Marcos, said the admission of the existence of several other servers in the AES validated their earlier contention that indeed Smartmatic was not forthright in the system it employed during the elections, putting the integrity of the May polls under a cloud of doubt.