Bongbong camp asks DOJ to review dismissal of case vs poll execs

The campaign adviser of defeated vice presidential candidate Ferdinand “Bongbong” Marcos Jr. has asked the Department of Justice (DOJ) to reconsider the resolution of the Office of the City Prosecutor in Manila dismissing the case for violation of the Cybercrime Prevention Act of 2012 against officials of the Commission on Elections and Smartmatic.

In his 29-page petition for review, former Abakada party-list representative Jonathan dela Cruz said the panel from the Manila prosecutors’ office committed reversible error in dismissing for insuffiency of evidence the case against Marlon Garcia, head of the Smartmatic technical support team; Elie Moreno, Smartmatic project director; Neil Baniqued, Smartmatic team member, and Rouie Peñalba, Comelec information technology officer.

The panel of prosecutors also dismissed the case against Smartmatic technical support team member Mauricio Herrera and Comelec employees Nelson Herrera and Frances Mae Gonzales for lack of merit.

The prosecutors said Dela Cruz failed to present evidence that the tweaking of the script of the transparency server had compromised the integrity of the elections or caused widespread anxiety. The OCP-Manila added that there was no evidence also to prove that there was intention on the part of the respondents to compromise the transparency server and cause widespread anxiety.

But Dela Cruz said in the Cyberbrime Prevention Act, being a mala prohibita, intent or good faith is immaterial.

“The mere commission thereof amounts to a breach in the confidentiality, integrity and availability of computer data and systems,” he said.

Dela Cruz further stated that by alleging that there was no damage caused by respondent in changing the script, the OCP-Manila may have overlooked the fact that the change as declared by Comelec commissioners was committed without right or authority, an act punishable under the Cybercrime Law.

Dela Cruz also disputed the finding of the OCP-Manila that the script change was with “implied” right or authority when it said the protocol of escalation gave them the discretion to introduce changes.

He argued that the protocol did not apply because the matters raised in the script change pertained to incident management and not change management. “(T)he protocol of change management should have applied particularly, as it dealt with the handling of change request or request of changes in the system after it has been accepted by the Comelec,” he said.

And even assuming the protocol of escalation was applicable, Dela Cruz countered that any change “involved contingency matters” that should be referred to higher authorities.

“As the protocol of escalation involves ‘contingency matters for escalation to higher authorities,’ it is outright absurd for the OCP-Manila to conclude that the resolution of said matters necessarily includes the ability to decide whether escalation, in fact, is needed as when the Smartmatic personnel can resolve the matter, by himself. The OCP-Manila clearly erred in assuming that the escalation of matters to designated counterpart Comelec personnel is discretionary upon respondent,” he said.

Dela Cruz further stated that all the issues raised during the preliminary investigation should be best discussed in the courts.

“The admissibility or veracity thereof, as previously discussed however, is better ventilated during the trial proper of the case rather than at the preliminary investigation level. Hence, the OCP-Manila erred in concluding that the evidence falls very much short of the quantum required to constitute probable cause for the crime charged,” Dela Cruz concluded./rga