Equal protection, jurisprudence, and the legality of the Comelec contract with Smartmatic-TIM

I thought there was an argument based on the Constitution that would be a substantive ground to enjoin the Smartmatic-TIM contract.  The argument was to be based on Equal Protection clause, which states in effect that no person shall “be denied the equal protection of the laws” (Art. III, Sec, 1, second clause).  See the comment to my earlier post.

Equal Protection means that “all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed” (Nachura, Reviewer in Political Law, 94).

What exactly could Comelec have done that violates Equal Protection?  It is possible that it  imposed a rule on bidders that required them all to have juridical personality, but nonetheless gave the award to an entity that, at the time of the bidding, was not yet in existence.

As is well known, Comelec awarded the contract to a “consortium” of Smartmatic and TIM on June 10, 2009, but it was only on July 3, 2009 that the incorporation papers for the  joint venture of Smartmatic-TIM  were signed by their respective principals.  In short, it appears that Comelec did not treat all bidders for the automation contract alike, since some of the other bidders who failed to win the contract already had the required juridical personality during the bidding process.

But Comelec has a defense. There is a report that Comelec itself never required bidders to form joint ventures.  If true, then the contract of Smartmatic-TIM with Comelec would be void on the simple ground that it violates jurisprudence.  The requirement of personality at the time of the bid is one of the important holdings of the Supreme Court in Information Technology Foundation of the Philippines vs. Comelec, GR 159139, 2004).  The Roque petition argued the same (Substantive grounds, Secs. VIII and IX).

In short, there is a “no way out” situation that now confronts Comelec.  If it argues that it obeyed the jurisprudence, it would have to show that it required the proper existence of joint ventures that bid for the contract.  But then, it would be in violation of the Equal Protection clause as well as its own rules on the bidding process.

If, on the other hand, it never required bidders to have had juridical personality, then it violated case law (the Information Technology case), and under said case law, the Smartmatic-TIM contract would have to be declared void.

Either way, the Smartmatic-TIM contract would be void.


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