Manila Standard Today – Marcos presses for resolution of criminal charges vs Comelec, Smartmatic

Featured-image-Manila-Standard-Today1By Macon Ramos Araneta | Manila Standar Today

The camp of former senator Ferdinand Marcos Jr. said on Monday it was prepared to file a motion seeking the immediate resolution of the criminal complaint it filed with the Manila Prosecutors Office against officials of the Commission on Elections and Smartmatic Corp. in connection with the May 9 vice presidential race.

This developed shortly after the respondents charged with violation of the Cybercrime Law admitted they introduced changes in the script of the Transparency Server without authority on the night of the elections.

Marcos’ campaign adviser and former Abakada Party-List Rep. Jonathan Dela Cruz filed the criminal case against Smartmatic personnel Marlon Garcia, a Venezuelan and head of the firm’s Technical Support Team; Elie Moreno, an Israeli national and Project Director and Neil Baniqued and Mauricio Herrera, members of the Technical Support Team; and Rouie Peñalba, Nelson Herrera and Frances Mae Gonzalez, all assigned at the Comelec Information Technology Department, for violation of the Cybercrime Prevention Act of 2012.

The particular violations: Offenses against the confidentiality, integrity and availability of computer data and systems:

-Illegal Access.—The access to the whole or any part of a computer system without right.

-Data Interference.—The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

-System Interference.—The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

If found guilty, the accused will be sentenced to a prison a term of six to 12 years.

Dela Cruz said with the respondents owning up to their violations, the cases have become simple and straightforward there should be no delay in the resolution.

`“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.

`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.

Dela Cruz 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.

He 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.

“By so doing, respondents are attempting to mislead this Honorable Office through technical illustrations irrelevant to the present controversy,” Dela Cruz said.

Dela Cruz said the respondent also “deliberately omitted” the fact that Republic Act 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.

The camp of Marcos presented a graph showing how the insertion of a change in the script or system coincided with the steady drop of the lead of the senator until he was overtaken by administration’s vice presidential candidate Leni Robredo at 3:08 a.m. on May 10.

Marcos was able to build a substantial lead to around 1 million votes. But when the change in the script was introduced between 7:30 p.m. And 8 p.m. (May 9), his lead suddenly slowed down. Thereafter, beginning at 8:59 p.m., his lead decreased and after four updates, his lead was down to just 5,000 votes, the senator’s camp said.

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