Daily Tribune - The day finally comes

By Ninez Cacho-Olivares | The Daily Tribune 

Finally, Smartmatic faces a criminal case in court, after the Department of Justice (DoJ) ordered the filing of charges against personnel of the Commission on Elections (Comelec) and poll technology provider Smartmatic in relation to the script change in the transparency server during the May 2016 polls.

In a resolution dated June 2, Justice Undersecretary Deo Marco found probable cause to charge Smartmatic personnel Marlon Garcia, head of the Technical Support Team; and his subordinates Neil Baniqued and Mauricio Herrera for violation of Sections 4(a)(1), (3) and (4) of Republic Act 10175 or the Cybercrime Prevention Act.

Also found liable were Comelec information technology experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales.

Marlon Garcia, the Smartmatic officer who, along with a Comelec personnel, was found to have changed the script of the transparency server, which hosts the unofficial election results, as this was tweaked on the night of election day, although the claim was that this was tweaked only to correct the “?” character into “ñ” that appeared in the names of some candidates, which really makes no sense, considering that there was no presidential and vice presidential bet that had a name with the letter ñ.

The Comelec chief, Andres Bautista, admitted that there was a script change although he maintained that the script change did not affect the results of the vice presidential election race.

The Comelec chief of course, being an impeachable official, cannot be charged criminally until after his term is up. However, there is no reason for Congress not to initiate an impeachment complaint against Bautista.

After all, Bautista has failed to explain how Smartmatic’s Garcia and Rouie Peñalba, of the Comelec, were able to do the tweaking without any permission from Bautista, who alone held the second half of the password to the script server.

Bautista claimed he was not aware of the tweaking until it was over yet he readily vouched for Smartmatic and Peñalba’s version of their mere “cosmetic change” in the transparency server.

What really stands out however, is the fact that this “cosmetic change” as Smartmatic and Bautista love to call this blatant electronic cheating, was done in the dead of the night and when morning came, over a million votes were lost from one vice presidential candidate.

Marcos’ camp had wondered why his lead over Robredo in the unofficial count began to erode following the introduction of a new script in the transparency server and with Robredo, who was losing in the millions, suddenly overtook Marcos.

Marcos has also filed a protest against Robredo before the Supreme Court acting as the Presidential Electoral Tribunal, with the preliminary conference scheduled next month.

Smartmatic and the Comelec personnel are in deep legal trouble.

Section 4 (a)(1) of RA 10175 penalizes the access of a computer system without any authority while Section 3 penalizes the intentional and reckless altering of computer data.

Section 4 penalizes the act of hindering or interfering with the functions of a computer and computer network by inputting, deleting and altering computer data and programs, without any right or authority.

The DoJ stated that the respondents committed an illegal act for failing to secure the required authorization from the Comelec en banc before changing the script in the transparency server stationed on Pope Pius Center in Manila.

“It was established that the respondents were able to access the transparency server to change the name without notifying the Comelec en banc,” the resolution stated.

“It must be noted that the Comelec IT personnel assigned at the PPCRV center had no authority to allow any Smartmatic personnel to tweak the transparency server. As a result thereof, the hash codes failed to match.

However, despite the said alteration, said fact was not announced until after the lapse of 24 hours when the parties were alerted of said fact,” it added.

There is doubt, however that Smartmatic’s Garcia and other Smartmatic personnel charged are still in the country, which means they can be arrested and face charges in the Philippines, if they are tagged by Interpol as wanted persons.

As for the Comelec personnel, they will have to explain their role in the tweaking of the hash tag.

But maybe some of them could turn state witnesses and blow the whistle on the Comelec and Smartmatic thieves.