THE camp of vice presidential candidate Senator Ferdinand Marcos Jr. filed charges Tuesday against Smartmatic and Commission on Elections personnel, accusing them of violating the Cybercrime Prevention Act by illegally changing the program used by the transparency server on the night of the elections.
Charged were Smartmatic personnel Marlon Garcia, a Venezuelan national and head of the Technical Support Team; Elie Moreno, an Israeli national and project director and Neil Banigued and Mauricio Herrera, members of the Technical Support Team; and Comelec IT experts led by Rouie Peñalba, Nelson Herrera and Frances Mae Gonzalez.
The complaint was filed by Abakada Rep. Jonathan dela Cruz, Marcos’ campaign advisor.
Accompanied by lawyer Jose Amor Amorado, head of Marcos’ Quick Count Center, Dela Cruz said the group clearly violated Section 4 of the Cybercrime Prevention Act by 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.
Dela Cruz pointed out that respondents were tasked to ensure the credibility of the elections by manning the transparency server at the Pope Pius XII Catholic Center Building in Manila. No other personnel is allowed in the transparency server except the Comelec, through its IT Department.
Despite such rules, Dela Cruz said respondents entered the room with the transparency server and changed the script without authorization on the night of the elections when transmissions were in full swing.
He said the server could not have been accessed without the consent of the Comelec IT personnel because they had the other password to open it.
Interviewed after the filing of the charges, Amorado said all the respondents were present when the script was changed by Smartmatic personnel.
He said the Comelec’s declaration that they did not authorize Smartmatic to change the script was a matter of defense because they had the other password.
“How then was Smartmatic able to open the server without getting the Comelec password? Their presence there constituted implicit consent to the change,” Amorado said.
Dela Cruz said by their act, the respondents committed a security breach in the automated election system (AES), particularly in the transparency server, thereby compromising the integrity and credibility of the 2016 elections, and the confidentiality, integrity and availability of computer data and systems.
The violation is punishable by imprisonment of from six years to 12 years.
Dela Cruz added that they discovered the unauthorized intrusion exactly 24 hours later on the evening of May 10, when representatives of the United Nationalist Alliance and Nationalist People’s Coalition reported that the hash codes had been changed—which indicates that the program running on the server had been alterred.
They then went to the transparency server and after a short investigation, Mauricio Herrera told them that they had changed the script to change the “?” in some names to the “ñ” character.
Dela Cruz pointed out that the unauthorized change was confirmed by Peñalba and Moreno in several official pronouncements.
Dela Cruz also pointed out that several Comelec commissioners also confirmed that the change was illicit and unauthorized.
“Indeed, the act of ‘tweaking’ the script of the transparency server caused widespread anxiety and concern.... The lapses in protocol have undermined the credibility and integrity of the 2016 elections including the confidentiality, integrity and availability afforded to computer data and systems,” he said.
He further stated that the defense of cosmetic change will not exculpate the respondents because of the nature and description of the offense. He said it is enough that the change was made without authority.
“From the above premises, respondents have committed a breach in the AES that violated the confidentiality, integrity and availability of the computer data and systems thereof,” he said.
Earlier, Dela Cruz also filed a criminal complaint for violation of the Automated Election Law before the Comelec.
Charged were Garcia, Moreno, Banigued and Peñalba for their authorized script change in the transparency server.
Marcos on Tuesday vowed to seek the exclusion of Certificates of Canvass in the vice presidential canvass in areas with evidence of irregularities, but called for the immediate proclamation of the winning candidate for president, Rodrigo Duterte.
Marcos said while he has “serious reservations” on the canvassing of votes for the vice presidential race, Duterte should be proclaimed immediately.
“I propose the immediate proclamation of our presumptive President Rodrigo Duterte, being the clear and uncontested winner in the presidential elections,” Marcos said.
“Again, I offer him my sincere congratulations and my hand in partnership for the future. Mr. President, the Philippines now looks to you for your leadership and vision,” Marcos said in a privilege speech.
Marcos made the assertion even as the joint committee of the National Board of Canvassers comprised of senators and congressmen agreed to carry the provision introduced by the Senate that the NBC would “not look beyond the face of the CoC.”
The joint session of Congress on Tuesday approved the rules that would govern the canvassing that begins at 2 p.m. Wednesday.
Under the rules, both houses of Congress agreed that all electoral protests to be raised by presidential and vice presidential candidates would be immediately referred to the Supreme Court under the Presidential Electoral Tribunal.
But Marcos asserted there were areas where electoral irregularities had transpired and that these CoCs must be examined first before they get canvassed.
“I think there were areas where we need to examine [the CC’s] first before being included in the canvassing. It depends on the area; there were places where there were no problems at all,” Marcos said.
In the official canvassing of votes for the vice presidency, several irregularities were observed, he said.
Because of this, he said his camp would move to exclude from the official canvassing of votes the CoCs of areas where there were evidence or strong indications of poll irregularities.
He said most of these areas where poll irregularities occurred were in the Autonomous Region in Muslim Mindanao.
Marcos also cited the reports on thousands of pre-shaded ballots in an abandoned warehouse in Pangasinan, SD cards found in a trash can in Kabankalan, Negros Occidental, as well as a video of election fraud in Datu Ampatuan, Maguindanao.
He also brought up the unauthorized introduction of a new script in the transparency server used for the unofficial tally, and how his one million-vote lead vanished within hours after the program was uploaded.
In a privilege speech on Monday, Marcos said he has “serious reservations” on the canvassing of the votes for the vice presidential race, citing reports and evidence of various irregularities that put a cloud of doubt on the integrity of the results of the polls.
He noted that Smartmatic’s Garcia had been charged with electoral sabotage for doing the very same thing during the 2013 elections.
Marcos also said that while Comelec Chairman Andres Bautista claimed this results was merely ‘cosmetic,’ this assurance should not be taken “as gospel truth.”
“We should not accept on mere blind faith the representations of the contractor and the reflected data on their machines. The burden of proof should be upon them, and Comelec as well, that the integrity of the system was not compromised. Comelec should not allow that the secrecy of the ballot be turned into the secrecy of the vote count,” he said.
He lamented that so far, the Comelec has yet to reply on his request to allow the servers to undergo audit by his own IT experts.
Quoting a computer expert, Marcos said: “Any time a computer program is changed, it can change things you don’t see.”
Marcos said his camp has gathered evidence on other forms of cheating such as vote-buying, intimidation and other acts to deny voters their right to vote but these would be raised in the proper time and the proper forum.
Because of these controversies, cross-accusations and confusion, Marcos said there should be eternal vigilance to ensure a fair and free election.
In a joint session at the Batasan Pambansa, House Majority Leader and Mandaluyong City Rep. Neptali Gonzales II said controversy over the changing of the script could delay Duterte’s proclamation because Congress has to proclaim the winning president and vice president at the same time.
While Duterte won by a landslide, the vice presidential race has been close, with Marcos questioning the 200,000-vote advantage of Camarines Sur Rep. Leni Robredo in the unofficial count.
“We have similar COCs to be used and what is good for the presidential race will also apply to the vice presidential contest,” Gonzales, head of the 7-man House contingent to National Board of Cavassers, said.
“Never been in the history of congressional canvass in the last three presidential elections that the winning presidential and vice presidential candidates have been proclaimed separately,” he added.
On Tuesday morning, military trucks delivered 129 ballot boxes with COCs and 499 boxes containing election results.
Legislative Security Bureau Executive Director Col. Isabelito Flores said the ballot boxes were stored in a room beside the Plenary Hall.
Aside from these ballot boxes, 58 pouches containing CoCs were received.
The official canvassing of votes is expected to begin Wednesday, where a tally board for the presidential and vice presidential election results was also placed near the entrance of the Plenary Hall.
The consolidated canvassing system (CCS) which has received the electronically-transmitted COCs from provincial and city boards of canvassers, as well as special canvassing panels for overseas absentee voting, has been initialized and stored in the venue since May 9.
Comelec Commissioner Rowena Guanzon said Tuesday the en banc failed to act on Marcos’ request for a system audit of the transprency server and the central server.
“We did not decide on it today (Tuesday). We have no decision. We have no response on that,” Guanzon said after the weekly meeting.
Earlier, Bautista said the commission en banc would deliberate on Marcos’ request to open the automated election system to a team of IT experts who would perform an audit under the supervision of the Comelec.
Marcos said the systems audit is aimed at determining whether other changes in the system have been introduced or whether a different program has been loaded in thetTransparency server.
Guanzon said she is in favor of having a third party audit to ensure that the process is impartial.
“It should be an IT expert that is not affiliated with any political party or candidate... preferably, it should be identified by the DOST, or it can even be the DOST,” Guanzon said, referring to the Department of Science and Technology.
The Senate and the House of Representatives on Monday convened in a joint session to fulfill their function as members of the National Board of Canvassers to tally the votes for president and vice president.
During the first day, senators and congressmen agreed on rules that will govern the rules on canvassing with 14 senators and 181 House members in attendance.
Senate Minority leader Vicente Sotto III proposed that Sec. 10 of the rules be amended by inserting the phrase: “Any issue involving the position of president and vice president maybe decided separately.”
The amendment, Sotto said, was intended to avoid the possibility of delay in proclaiming the winners either for the president and the vice president. – With Joel E. Zurbano
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