Why a quo warranto?

"The Solicitor General makes three basic arguments."

According to Solicitor General Jose Calida, quo warranto is the proper remedy for the state to forfeit the franchises of ABS-CBN Corp. and ABS-CBN Convergence Inc. “for gross violation of their franchises.”

He makes three basic arguments: One, the Supreme Court has jurisdiction over quo warranto cases; two, the case is a matter of transcendental importance; and three, it is a case of first impression. There has been no such case before.

Under Section 1 of Rule 66 of the Rules of Court, “an action for the usurpation of a public office, position or franchise may be brought in the name of the Republic of the Philippines against a person who usurps, intrudes into, or unlawfully holds or exercises public office, position or franchise.”

The special civil action of quo warranto is a prerogative writ by which the government can call upon any person to show by what warrant he holds a public office or exercises a public franchise.  

Calida insists: “The franchises of ABS-CBN Corp. and ABS-CBN Convergence have to be revoked for the gross violations they have committed. A forfeiture of a franchise will have to be declared in a direct proceeding for the purpose brought by the State because a franchise is granted by law and its unlawful exercise is primarily a concern of the government. Quo warranto is specifically available as a remedy if it is thought that a corporation has offended against its corporate charter or misused its franchise.”

Respondents are guilty of unlawful exercise of their franchises under Section 1(a), Rule 66 of the Rules of Court, which states that:

“An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: ‘a person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise …’”

In Divinagracia vs. CBS Inc., the Court recognized that “[t]here is in fact a more appropriate, more narrowly-tailored and least restrictive remedy … ” to call upon any person to show by what warrant he exercises a public franchise—the resort to a quo warranto proceedings under Rule 66 of the Rules of Court.

Divinagracia cited PLDT v. NTC and Cellcom Inc., in which the Supreme Court had declared that quo warranto is the proper procedure to question a franchise. It said: “A forfeiture of a franchise will have to be declared in a direct proceeding for the purpose brought by the State because a franchise is granted by law and its unlawful exercise is primarily a concern of Government.”

Calida says a “franchise” is a “special privilege.” As a grant of the government, not only is a franchise a “special” privilege; it is also a privilege of “public concern.” As a public concern, a franchise has likewise been held to be “reserved for public control and administration” either by the government directly, or through state agents, subject to rules and regulations attached with the exercise of the powers of the franchise.

Section 5 of the Philippine Constitution enumerates the Supreme Court’s powers, among them, to “Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.”

To be sure, Calida admits in his petition, “the doctrine of hierarchy of courts precludes direct resort to the Court as it is a court of last resort. The rule, however, admits of exceptions.

The doctrine of hierarchy of courts is not an iron-clad rule. This court has “full discretionary power to take cognizance and assume jurisdiction [over] special civil actions for certiorari… filed directly with it for exceptionally compelling reasons or if warranted by the nature of the issues clearly and specifically raised in the petition.”

A second exception is when the issues involved are of transcendental importance. In these cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

The invocation of the Supreme Court’s original jurisdiction to issue writs of certiorari has been allowed in certain instances on the ground of special and important reasons clearly stated in Calida’s petition, such as, (1) when dictated by the public welfare and the advancement of public policy; (2) when demanded by the broader interest of justice; (3) when the challenged orders were patent nullities; or (4) when analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of the case.

“The present petition involves a matter of transcendental importance and is a case of first impression, which are some of the exceptions to the doctrine of hierarchy of courts cited above,” explains Calida.

Calida argues in his petition: “This case is of transcendental importance because ABS-CBN’s franchise mandates it to serve the public by its broadcast operations. ABS-CBN Corp. in fact earned the distinction of being the largest media conglomerate in the country, reaching millions of viewers in all corners of the country. As the biggest broadcasting entity, it is able to shape the public’s opinion on a variety of issues, apart from providing entertainment. However, its size and function do not exempt it from complying with, and upholding the laws of the land, including the terms of its very existence—its franchise.”

“The determination of the right to the exercise of a franchise, or whether the enjoyment of such privilege has been forfeited by non-use, is more properly the subject of the prerogative writ of quo warranto, to which the right to assert, as a rule, belongs to the State upon complaint or otherwise, the reason being that the abuse of a franchise is a public wrong and not a private injury. The issue of abuse of franchise is a matter of public concern that calls for an action by the State that granted the franchise.”

The ABS-CBN case “is an opportunity that the Court must seize to draw the line in future cases,” says Calida.

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