MANILA - The camp of former Senator Ferdinand "Bongbong” Marcos Jr. today asked the Department of Justice to file criminal charges against Commission on Elections (COMELEC) and Smartmatic personnel over their unauthorized change in the system of the Transparency Server at the height of transmission of votes on the night of the elections.

In a 28-page Petition for Review filed at the DOJ, former Abakada party-list Rep. Jonathan dela Cruz, political adviser of Marcos, asked the DOJ to reverse the earlier finding of the panel of prosecutors of the Office of City Prosecutors Manila (OCP-Manila) dismissing his complaint for violation of the Cybercrime Law against Comelec and Smartmatic personnel.

Dela Cruz said the OCP-Manila committed a grave error when it dismissed for insufficiency of evidence his complaint for violations of Section 4(a)(1), (3) and (4) of R.A. 10175 (the "Cybercrime Prevention Act") against Comelec IT experts Rouie Peñalba, Nelson Herrera and Frances Mae Gonzales and Smartmatic officials led by Venezuelan Marlon Garcia, Elie Moreno, Neil Baniqued, and Mauricio Herrera.

Dela Cruz had filed the complaint against the respondents for their unauthorized system change in the Transparency Server when they supposedly replaced "?" with "ñ" while the transmission of votes was ongoing on the night of May 9, 2016.

"The act of 'tweaking' the script of the Transparency Server caused widespread anxiety and concern amongst the nation. The lapses in protocol have undermined the credibility and integrity of the 2016 NLE and pertinently, the confidentiality, integrity and availability afforded to computer data and systems," he said.

But in dismissing his complaint, Dela Cruz said the OCP-Manila completely disregarded evidence submitted as well as the admissions made by the respondents admitting to the unauthorized script change when it ruled that there was no evidence that they committed the act in bad faith.

Dela Cruz asserted that the Cybercrime Law, based on deliberations in Congress when the law was being passed, is a “mala prohibita” where intent or good faith is immaterial.

"(A) perusal of the records of the Senate deliberations will show that (then) Senate President (Juan Ponce) Enrile proposed to remove the word 'intentional' in the definition of the cybercrime offenses…. (He) propounded that it is enough that such acts are made without right or justifiable reason," Dela Cruz said.

He added, "(t)he enacted law, meanwhile, illustrates that the word 'intentional' was deleted for the cybercrime offenses of Illegal Access and Illegal Interception as compared to the terms of the draft measure and the Budapest Convention. As for the cybercrime offenses of Data Interference and System Interference, it can be inferred that the word 'intentional' was not deleted as both cover acts done recklessly or without intent."

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 was committed without right or authority as declared by COMELEC Commissioners, which is 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 of Escalation does not apply because the matters raised in the script change pertained to incident management and not to 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 should have been referred to higher authorities because the same Protocol of Escalation required the same for "contingency matters."

"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 ventilated 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.