Some SC applicants see little chance for ABS-CBN's petition vs NTC closure order

Mike Navallo, ABS-CBN News

Posted at May 29 2020 03:17 AM

MANILA -- If some Supreme Court applicants would have it their way, ABS-CBN's plea to resume broadcast operations stands little chance of surviving judicial scrutiny.

Four of the applicants -- Ramon Bato, Jr., Priscilla Baltazar-Padilla, Edwin Sorongon and Nina Antonio-Valenzuela -- all Court of Appeals associate justices, faced the Judicial and Bar Council Thursday for a public interview in their bid to replace SC Associate Justice Andres Reyes, Jr., who retired on May 11.

It was the first public interview done online, through a videoconferencing app, as the country continues to deal with the coronavirus pandemic.

The applicants were asked regarding various aspects of ABS-CBN's petition for certiorari and prohibition with a prayer for a temporary restraining order and preliminary injunction against the National Telecommunications Commission's cease and desist order (CDO).

The CDO led to ABS-CBN stations going off the airwaves on May 5.

The network ran to the high court for an immediate relief but it has instead given NTC time to comment and impleaded the House of Representatives and the Senate.


Sorongon said ABS-CBN's petition should be dismissed because there are factual issues that the high court cannot determine since it is not a trier of facts.

"As long as the issue there in the case, the determining of the issue is based on factual issues, then, even if it's of transcendental importance then it will not be resolved by the Supreme Court," he said, invoking the doctrine of hierarchy of courts which requires litigants to file the case first with a lower court to determine factual issues.

ABS-CBN had said the transcendental importance of the issue justified going straight to the Supreme Court, citing previous SC cases.

But Sorongon said the case should have been filed before the Court of Appeals instead, which, under the Rules of Court, has jurisdiction over appeals to decisions of quasi-judicial agencies like the NTC.

Leyte Representative Vicente Veloso, who represents Congress at the JBC, hammered on this point in questioning Bato and Baltazar-Padilla over SC's jurisdiction over the case.

But the two disagreed, explaining that the Supreme Court's expanded jurisdiction allows it to determine whether a government agency gravely abused its discretion amounting to lack or excess of jurisdiction to justify the high court stepping in on the ABS-CBN issue.

Bato agreed that there was no longer a justiciable controversy for the Supreme Court to resolve with the lapse of ABS-CBN's franchise.

He also said ABS-CBN could not even go after Congress since the issuance of a legislative franchise is left to Congress' discretion.


Bato however acknowledged that there could be an issue on procedural due process when ABS-CBN did not receive a show cause order and was instead immediately ordered to stop operating.

"There is also a decision of the Supreme Court to the effect that a property right may evolve into a question of due process, if the entity involved has invested so much and that there are substantial number of persons that would be affected, and so here there is a question on procedural due process," he said.

"I’m not saying that it should be decided in one way or the other, but I am just saying there is also a decision of Supreme Court to that effect, your honor. Whether that should be applied in this or not, then that is matter that is left to the sound judgment of honorable members of the Supreme Court," he explained.

Former Information and Communications Technology Secretary Rodolfo Salalima had said that the NTC's CDO was void since ABS-CBN's right to procedural due process was violated and the network could continue operations.

Pressed by regular JBC member ret. Justice Jose Mendoza for his position on whether the NTC's CDO was void, Bato said it was not as the lapse of ABS-CBN's franchise was "self-executing."

"The fact that it expired, franchise expired then by operation of law, ABS-CBN has no more authority to continue its operation," he said, making up his mind that a show cause order was not needed and the CDO was in fact "superfluous."


Baltazar-Padilla shared the view that ABS-CBN needs a franchise to continue operating, rejecting the initial suggestion that Congress issue a joint resolution instead -- a view held by Justice Secretary Menardo Guevarra, the Senate and the House Franchise committee.

"What is required is a law and not a mere resolution. As upheld by the Supreme Court, a resolution is a mere expression of the Congress' sentiments or what they call now as senses. It is not a law. It did not pass through the procedure prescribed under the Constitution for the passage of a law," she argued.

But she warned that passing a law extending the franchise solely of ABS-CBN without doing the same to others similarly-situated, lawmakers risk violating the equal protection clause, echoing the position of retired Senior Associate Justice Antonio Carpio.

Carpio's main point however was to show that NTC discriminated against ABS-CBN when it singled out the network and issued the closure order for the first time ever against a broadcast company.


Antonio-Valenzuela, for her part, insisted, a franchise is needed even for private broadcasting companies like ABS-CBN, when asked about the Public Telecommunications Act (RA 7925) which only requires a franchise from a public telecommunications entity.

That act defines a "public telecommunications entity" separately from "broadcasting."

"The Constitution says that a franchise is a privilege and not a right and only Congress can grant the privilege and so if that law...defines...only gives...only includes public corporations in the definition, then I think that would be unconstitutional," she said.


The applicants were also asked to weigh in on some issues surrounding ABS-CBN's franchise.

Baltazar-Padilla said ABS-CBN's Philippine Depository Receipts (PDRs) issued to foreigner have "all the attributes of ownership just like holders of shares of stocks," which raises a constitutional issue since mass media in the Philippines must be 100% Filipino-owned and managed.

"Through these PDRs, foreign corporations were able to invest huge sums of money. And I think, that alone, would give them, some sort of control over the management of the issuing corporation," she explained.

ABS-CBN had earlier pointed out PDRs are investment instruments which do not grant any control or ownership to PDR holders.

It was also approved by the Securities and Exchange Commission (SEC), as confirmed during the Senate hearing in February.

"The challenge here is the test to determine ownership is evolving in the Supreme Court, what we can say is that when the PDRs of ABS-CBN Holdings Corp, when they were issued based on prevailing law, jurisprudence and regulations, the determination of the SEC at that time is there's no transfer of ownership. Holders of the PDRs are not owners of the underlying corporation," SEC supervising commissioner Ephyro Luis Amatong said.

ABS-CBN Holdings, not ABS-CBN, issued the PDRs.

Baltazar-Padilla also shared Veloso's and ultimately SAGIP Party-list Rep. Rodante Marcoleta's view that a 50-year limit exists for the franchise granted to ABS-CBN, relying on Article XII, section 11 of the 1987 Constitution.

But lawyer Christian Monsod, one of the framers of the 1987 Constitution, pointed out Tuesday that this provision covers public utilities, not mass media.

What applies instead, he said, is Article XVI, section 11 which does not impose a 50-year limit.

The House of Representatives in March approved on third and final reading a bill limiting the definition of public utility to power transmission and distribution, water distribution and sewage collection.


Aside from the 4 applicants, 9 other candidates are vying for the SC associate justice post but have previously been interviewed. They are: Court Administrator Jose Midas Marquez, Sandiganbayan Presiding Justice Amparo M. Cabotaje-Tang, and CA Justices Manuel Barrios, Eduardo Peralta, Jr., Ramon Cruz, Pablito Perez, Japar Dimaampao, Ricardo Rosario, and Jhosep Lopez.

Supreme Court magistrates are expected to make an internal vote to determine their recommended candidate, which will be forwarded to the JBC for consideration in coming up with a shortlist for submission to the President.

With the next appointment, President Rodrigo Duterte will have appointed 11 of the 15 sitting justices in the Supreme Court -- 12 if including Chief Justice Diosdado Peralta.