By Dean Arturo M. de Castro
University of Manila Graduate School of Law
This is a dispassionate commentary of a public interest private lawyer from the academe and the private sector under his blog Legal Forum on Current Legal Issues presenting both sides of the issue on the quo warranto to revoke the franchise of ABS-CBN for the evaluation and better appreciation of the public.
The position of the solicitor general
The quo warranto petition seeks to cancel the congressional franchise of television network ABS-CBN for “violations of the laws and the Constitution,” in order to end the highly abusive practices of ABS-CBN benefitting a greedy few at the expense of its millions of loyal subscribers.” ABS-CBN TV plus the KBO Channel launched and operated pay-per view without prior approval and permit from the National telecommunications Commission.
The more serious grounds for cancellation of the franchise is violation of Article 16, Section 11 of the 1987 Constitution that limits ownership of mass media 100 percent to Filipinos when ABS-CBN “issued Philippine Deposit Receipts [PDR] through ABS-CBN Holdings Corporation to foreigners.” The network’s subsidiary, ABS-CBN Convergence “resorted to an ingenious corporate layering scheme in order to transfer its franchise without necessary congressional approval.” ‘‘Moreover, [i]t failed to publicly offer any of its outstanding capital stock to any securities exchange within the Philippines within five (5) years from start of its operations, which is indispensable condition in its franchise.”
The position of ABS-CBN
ABS-CBN in its defense, asserts that the petition is “without merit” and maintains that it did not violate the law; that it complies with all the laws governing its franchise and has secured all necessary government and regulatory approvals for its business operations. The petition for quo warranto is an attempt to deprive ABS-CBN freedom of speech and an assault on press freedom.
Certain legislators opine that the Supreme Court has no jurisdiction under the doctrine separation of powers among the legislature, the judiciary and the executive department. It is argued that the legislature has the sole constitutional power over cancellation or extension of franchise.
Analysis of evaluation
The revocation for violation of the Constitution and other laws of a franchise granted by the legislature is a justiceable question within the power of judicial review by the Supreme Court. The fact that ABS-CBN “has secured all the necessary government and regulatory approvals for its business operations” is not tenable as a defense because such approvals precisely fall under the category of highly abusive practices of ABS-CBN committed in the conspiracy with the past of government bureaucracy that may have been tainted by patronage graft and corruption committed by ABS-CBN, which fall within the powers of the Supreme Court to review acts of the other departments, their agencies and instrumentalities which are tainted with grave abuse of discretion under Sec. 1, Art. VIII of the Constitution.
The Supreme Court in its wisdom and independence would resolve the important constitutional question of 100-percent ownership and control of mass media raised in the quo warranto petition. The petition would be moot and academic if Congress fails to renew the franchise of ABS-CBN by March 20. The high court may simply dismiss the petition for being moot and academic because there is no franchise to revoke if the franchise is not renewed. The Supreme Court may resolve a moot and academic question for the guidance of the Bench and the Bar if it is likely to recur involving transcendental importance to the nation.
The President has the support of the overwhelming masses of the people in his campaign against the abuses of the oligarchs. The political opposition and ABS-CBN are making a mass appeal to the public to discredit the President and the administration which to date enjoy the overwhelming support of the people.
The ABS-CBN violates the sub-judice rule in discussing their defenses in the media when there is already a pending case before the Supreme Court.
I wish to raise an issue against possible malversation of public funds, if not syndicated estafa on the Meralco. The Lopez family could not pay the huge loans to the government, which was the reason Meralco was taken over by the Government and placed in the Meralco Foundation for the benefit of the consumers, with electric consumers as the members and beneficiaries. When Cory Aquino assumed power, she gave Meralco to the Lopez Family “gratis et amore” without requiring them to pay their huge loans to the Government.
I commend Solicitor General Jose Calida for his creative lawyering, for another master stroke in the quo warranto against the abuses and disregard of ABS-CBN of the Constitution and the laws similar to his novel and unprecedented quo warranto that ousted former Chief Justice Sereno.
I wish Solicitor General Jose Calida would look into the grossly illegal, oppressive and irregular Meralco turnover to the Lopez family to enable the government to return Meralco to its status as a non-profit corporation for the benefit of Meralco electric consumers before being illegally turned over as a gift of the Cory administration to the Lopez family.