Doctrine of operative fact; the immortal RAVS

In a decision ably penned by Justice Jose Midas P. Marquez, the Supreme Court unanimously struck down the Nov. 29, 2023 resolution of the Commission on Elections (Comelec) en banc that disqualified Smartmatic TIM Corp. from participating in any public bidding, especially the bidding for the automated election system (AES) for the 2025 elections. And yet, the Court did not invalidate the bidding won by Miru Systems. Why? Let me explain.

ALL PROCUREMENTS OF GOODS, SERVICES, OR CONSTRUCTION WORKS are governed by Republic Act No. 9184, the Government Procurement Reform Act (GPRA). This law requires public bidding before goods, services, or construction work can be procured by the government (including the Comelec) from private companies. The Comelec’s internal rules and regulations (IRR) detail the bidding process as it applies to the Commission.

Ignoring these requirements, Comelec outrightly disqualified Smartmatic from participating in any public bidding based on information from the Department of Justice of the United States relating to an ongoing criminal investigation of alleged irregularities in the procurement of the AES of the 2016 elections during the term of former Comelec chair Andres D. Bautista.

Consequently, the Comelec Special Bids and Awards Committee excluded Smartmatic from the bidding process for the forthcoming 2025 elections, and later, recommended the award for the 2025 AES to a joint venture led by Miru. Thereafter, the Comelec, through its questioned resolution, awarded the contract to Miru.

THE COURT RULED THAT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION in disqualifying Smartmatic without first hearing its side thereby depriving it of due process, and for violating the GPRA and its own IRR. Legally, an act done with grave abuse of discretion is void and deemed nonexistent. If indeed the bidding was void. Why was a new one not held?

Under the “doctrine of operative fact,” acts done in good faith prior to the determination of their unconstitutionality produce consequences that cannot always be erased, ignored, or disregarded. In short, it sets aside the void act but sustains its effects. Thus, the Court’s decision should be applied prospectively, and should not invalidate the bidding already done because a new bidding will adversely affect a higher public good—the strict timeline for the 2025 election.

Question: Will the doctrine result in an empty and Pyrrhic victory for Smartmatic which filed and spent for the petition? Not necessarily. Smartmatic may still participate in future biddings like the one for the 2028 presidential elections unless it is legally disqualified therefrom—after its constitutional rights, the GPRA and Comelec’s IRR are faithfully observed.

Do you agree with Comelec’s plan to file a motion for reconsideration? No, given the unanimity of the Court, I think it is a waste of time and resources. Moreover, without in any way siding with Smartmatic, I believe in the rule of law and the strict observance of due process. As the maxim goes, “I may not agree with what you say, but I will defend to the death your right to say it.”

THE MORTAL LIFE OF RENE A.V. SAGUISAG may have ended, but his immortal work shall forever be etched in the pantheon of heroes. He was profound, tenacious, honest, and humble. He could have been rich, very rich because the wealthiest clients of the world (not just of the Philippines) wanted to retain him as their counsel, but he opted to be poor, to serve the poor, and to remain poor until his death.

As the founder and former president of the National Union of Students, I offered to help him get elected as NUS president in 1961, but he respectfully declined; instead, he asked me to nominate Raul S. Roco. After his stint in the Ledesma Law Office, I invited him to be a partner in my law firm (which I dissolved when I entered the Supreme Court), but he preferred to practice solo so he could devote his full time in helping the poor attain justice. Nonetheless, together with Dean Antonio H. Abad Jr., we collaborated in a number of pro bono cases.

Though viewed by many as a “leftist,” RAVS—I believe—is not a political creature as shown by his initial reluctance to run for the Senate or any public office, and his firm refusal to seek reelection even if assured of victory by credible poll surveys. His consuming passion was to fight for what is right and against what is wrong, regardless of who and what is on the other side.

April 9 was the last time I saw him alive when he was acclaimed as one of the 13 “Haligi” of the Bantayog ng mga Bayani Foundation at the UP-University Hotel in Quezon City. Though wheelchair bound, numbed by illness, and bodily immobilized, he still manfully raised his clenched fist every time each of the honorees was called by name and the citations read, and gallantly pushed his head up and stretched his weakened right arm when the multitude sang the Bantayog rally hymn, “Bayan Ko.”

Compadre Rene (the baptism “ninong” of my daughter Celine), rest in Heaven with my Leni in the peace and love of the Lord. And on earth, live forever in our hearts and minds.

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