MANILA -- The National Telecommunications Commission's closure order against ABS-CBN has no force of the law as it was void from the very beginning, a former Duterte administration official said Sunday night.
In a Facebook post, former Department of Information and Communications Technology (DICT) Secretary Rodolfo Salalima said the NTC violated ABS-CBN's constitutional right to due process and NTC's own rules when it did not give the media giant the chance to be notified and heard about a complaint against its continued airing.
Salalima pointed out that ABS-CBN was not given a copy of any petition, nor was a show cause order issued and a hearing conducted on the supposed complaint against the media network.
He even asked if there was a petition or complaint at all.
"Was there a Petition or Complaint filed with the NTC questioning the continued operation of ABS-CBN predicated on the expiry of its franchise? If the Petition was dated and filed on May 5th with the NTC, then the CDO also dated May 5, 2020 was clearly issued with precipitate haste and thus void given the interval between the FILING of the Petition and the ISSUANCE of the CDO - - both May 5, 2020," he said.
"If the Petition was filed before May 5th, or prior the expiration of the ABS-CBN’s franchise on May 5th, then the Petition is PREMATURE IN LAW and thus there was NO CAUSE OF ACTION versus ABS-CBN as yet as at the filing date of the Petition, if any. In consequence, the CDO is likewise void ab initio. The Petition dated PRIOR to May 5, 2020, if any, because premature, should have been dismissed outright," he explained.
The last day of ABS-CBN Corporation's franchise fell on May 4, a day before the NTC issued the cease and desist order.
Salalima said the NTC denied ABS-CBN procedural due process "with supersonic speed," in violation of the Constitution. Procedural due process refers to the right to be informed of and to be heard on charges made and to undergo a fair trial while substantive due process is based on law and facts.
Both are guaranteed under the Bill of Rights which prohibits the government from depriving a person of life, liberty or property without due process of law.
"Without due process, all decisions of courts and quasi-judicial bodies, though arguably consistent with substantive statutory laws, are void ab initio. (See Ang Tibay vs, CIR ). They are of no force and effect in law. This is true of the NTC’s CDO in question," he explained.
The Ang Tibay case Salalima cited is a landmark case on procedural due process in administrative proceedings which requires the following:
-right to a hearing
-tribunal must consider evidence presented by a party
-decision must have basis
-there must be substantial evidence to support the findings
-decision must be rendered based on evidence presented during the hearing or contained in the record and disclosed to the parties
-tribunal must act on own independent consideration of the law and facts of the controversy
-decision must be rendered in a way that all parties can know various issued involved and the reasons for the decision
Given that NTC did not conduct a hearing on ABS-CBN's case, Salalima stressed that every judge, even in quasi-judicial cases before the NTC, must decide not based on what he personally knows but on issues raised and presented in evidence during the hearing or any other process.
He also said the NTC violated its own rules of procedure because under section 4 (Part III, Rule 10) of its 2006 Rules of Practice and Procedure, a show cause order is needed to inform a party of the particulars of the NTC's probe before a cease and desist order may be issued.
ABS-CBN CAN CONTINUE AIRING
Salalima, the first DICT secretary under the Duterte administration, also said ABS-CBN even has the legal right to continue operating despite the lapse of its franchise.
He said this is anchored on a constitutional right, not just equity which Justice Secretary Menardo Guevarra invoked, and "in the interest of justice and due process."
Salalima said that while a franchise is a privilege granted by the State, there are situations when it becomes a vested right.
"But once granted and the franchisee infuses investments or resources into the franchise to make it operational, like capital expenses (CAPEX) for the network infrastructure and operating expenses (OPEX) for the salaries and wages of the workers and employees, the franchise (or its application for extension seasonably filed) becomes a vested constitutional property right which cannot simply be taken away, revoked or set aside without due process of law," he argued.
Aside from the Bill of Rights, Salalima cited the 1990 Supreme Court case of Shauf vs. Court of Appeals which ruled that "the right to earn a living is part of one's right to life itself."
"ABS-CBN’s constitutional right to operate in the interim gains more importance because its operations are clothed with public interest as it is engaged in public service, and this right is intertwined intimately with the expanded digital freedom of expression (Section 4, Bill of Rights) and Article 19 of the 1948 Universal Declaration of Human Rights, thus: “Everyone has the right to freedom of expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.”
ABS-CBN'S CASE DIFFERENT
Salalima also differentiated ABS-CBN's case from that of Associated Communications and Wireless Services, which was cited by Solicitor General Jose Calida in his letter to the NTC justifying the issuance of a cease and desist order.
The Supreme Court, in that case, voided a Department of Justice opinion allowing a broadcast company to operate without a legislative franchise.
But Salalima said the case does not apply to ABS-CBN's.
"The particularities in and the uniqueness/novelty of ABS-CBN’s factual situation are not identical to those in the case of Associated Communications. Blind idolatry to judicial precedents, as when the salient facts obtaining in two cases are not identical, must not be countenanced," he said.
As Guevarra earlier pointed out, the company in ACWS was never previously issued a franchise unlike ABS-CBN which was given a franchise, operated for decades and is in the process of renewing but due to no fault of the company, Congress did not act on the franchise renewal bills.
BLAME CONGRESS, NOT NTC
Despite the lapses of the NTC for which it must be held accountable, Salalima said the NTC should not be made the scapegoat as it is the wrong agency to put extreme pressure on.
"The ultimate responsibility and fault lie on Congress, particularly the Leadership of the House of Representatives, constitutionally vested with the exclusive plenary jurisdiction and power to hear and grant applications for franchises or extensions thereof, for temporizing on ABS-CBN’s application for the extension of its franchise seasonably filed in 2016 yet," he said.
Salalima took the leadership of the House to task for having "failed our country and people," saying it is the House/Congress which has the constitutional duty to hear and grant a franchise and which also has the power to grant a provisional Congrressional franchise or authorization.
"ABS-CBN filed its application for the extension of its franchise so seasonably. Nothing happened to this application to date. So where is justice?," he asked.
"For Congressional non-action, public service and freedom of expression were thus sacrificed via a void legal technicality - - the void ab initio Cease and Desist Order of the NTC dated May 5 2020. Non-action is the worst form of delay. Because it leaves the aggrieved without clear and speedy recourse. So unfortunate and sad, particularly in these dark hellish nights of COVID…AND HERE I RAGE AGAINST THE DYING OF THE LIGHT," he added.
Salalima resigned from his Cabinet post in September 2017 due to personal and work-related reasons, among them, conflict of interest according to then-Presidential Spokesperson Ernesto Abella.
Salalima, a former classmate of Duterte at San Beda College of Law, had served as former chief legal counsel and senior advisor of one of the leading telecommunications firms in the country as well as the former head of the Philippine Chamber of Telecommunications Operators and a member of the executive committee of the National ICT Advisory Council.
"Why are we a Nation of sadists and masochists inflicting pain and sufferings against each other and unto ourselves? Why do we unnecessarily create enemies amongst us thereby poisoning our body politic? Why build walls and fences when we can construct human and humane connecting bridges? When we should heal and move as one, particularly now, against and amidst this terrible pandemic," he said in his post.
He urged the Philippine government to act "not by the letter of the law that killeth but by the spirit the giveth life to the law."
"Our Constitution is not a strict, passive, cold and indifferent law. It is a living and dynamic organism that must respond and adjust to the needs and in the service of every Filipino, our people, and our one and only Nation," he said.
ABS-CBN Corp. has filed a petition with the Supreme Court questioning the NTC's cease and desist order while asking for a temporary restraining order.
It is expected to be raffled off to an associate justice who will take charge of the case on Monday.