Philippine prosecutors on Wednesday dismissed for lack of merit a complaint filed against officials of the Commission on Elections (Comelec) and Smartmatic, saying there was not enough proof that they conspired to deliberately tamper with the transparency server that allegedly compromised the May elections.

In a 27-page resolution, the Manila Prosecutors Office said there was no evidence to back up the case against officials from the two bodies for violating the Cybercrime Prevention Act.

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Cleared were Smartmatic technical support team head Marlon Garcia, project director Elie Moreno and team members Neil Banigued and Mauricio Herrera, and Comelec employees Rouie Penalba, Nelson Herrera and Frances Mae Gonzales.

Jonathan de la Cruz, the first nominee of the Abakada party-list group, filed the complaint on May 24. He accused the group of conspiring to cheat “by inputting, and altering computer data and program without right or authority.”

De la Cruz, however, is also the campaign adviser of losing vice presidential candidate Bongbong Marcos, who has filed an electoral protest with the Presidential Electoral Tribunal questioning Vice President Leni Robredo’s victory.

It was not clear how the prosecutor’s findings would affect Marcos’ electoral protest.

No conspiracy

The prosecutors said it was “only” Garcia who made the “questioned change” in the script of the transparency server at the Parish Pastoral Council for Responsible Voting, and that the other Smartmatic respondents were in the area because they were assigned there. In the case of Moreno, he was assigned in Quezon City and was just “merely informed about it.”

“On the assumption that said change in the script is criminal, Garcia’s corespondents can hardly be considered as his coconspirators,” they said.

There was “no clear evidence” of conspiracy that led to Garcia changing of script from “?” to “ñ” because it was done without the authority of the Comelec sitting as a whole. The prosecutors said De la Cruz “failed to show convincing proof that only the Comelec en banc may give such authority” in the first place.

“Even knowledge, acquiescence in or agreement to cooperate is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime with a view to the furtherance of the common design and purpose,” they said.

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