Lawyer asks SC: Define SolGen's powers amid ABS-CBN shutdown issue

Mike Navallo, ABS-CBN News

Posted at Jun 06 2020 04:31 PM

MANILA - A lawyer seeking to bring ABS-CBN back on air has asked the Supreme Court to define the powers of the Office of the Solicitor General (OSG) amid issues surrounding the media giant's shutdown.
Lawyer Paris Real sought the high court's clarification through a 166-page petition he filed on Friday, which also asked for a temporary restraining order against the National Telecommunications Commission's (NTC's) cease-and-desist issuance against ABS-CBN.
It was Solicitor General Jose Calida who told the NTC, through a letter, to issue a cease and desist order (CDO) against ABS-CBN and warned against giving the network provisional authority, as the commission had promised Congress in March.

This led to the shutdown of the network's free-to-air broadcast on May 5, 2020, a day after the lapse of its franchise.

He also publicly warned NTC commissioners not to issue provisional authority in favor of ABS-CBN or risk facing graft charges, a move criticized by some lawmakers as "unconstitutional meddling."

The NTC would later cite Calida's quo warranto petition before the Supreme Court- which alleged violations of ABS-CBN Corp. and ABS-CBN Convergence, Inc.'s franchise- as the reason for issuing the closure order instead of a provisional authority.

"By clarifying the scope of the Powers and Functions of the OSG under Section 35 of the Administrative Code, the bench, the bar and future generations will, therefore, be properly guided as to whether the subject 'veiled threat' of the OSG was done within the scope of the powers of the OSG, or Senator Drilon and Speaker Cayetano are correct in saying that there was indeed such 'conflict of interest, interference and/or unconstitutional meddling' on the part of the OSG in the functions of an independent quasi-judicial tribunal (as the NTC), so a repetition thereof may be avoided in the future," Real said in his petition.
The 1987 Administrative Code lays down the powers of the OSG to represent government agencies in court proceedings, but does not mention anything about warning them against a future action.
Real said it is important that the high court resolve the issue so that if there was indeed interference or unconstitutional meddling, it "should direct the OSG not to do such act of 'interference' or 'unconstitutional meddling' in the future."
The OSG has been previously criticized for its involvement in the drafting of the affidavit of Peter Joemel "Bikoy" Advincula, who accused close to 40 opposition and religious figures of plotting to oust the President.

Advincula eventually became one of those charged with conspiracy to commit rebellion, along with former Senator Antonio Trillanes IV and 10 others.

In 2016, Calida himself also offered his office's services to prosecute Sen. Leila de Lima over alleged drug charges, invoking the OSG's power as "tribune of the people.

" De Lima was arrested in February 2017 on charges she was involved in the drug trade at the New Bilibid Prison during her time as justice secretary.

In the same petition, Real also urged the high court to compel the NTC to allow ABS-CBN to operate and stop the regulatory agency from taking back the network's frequencies.

Real argued the NTC's CDO was void because it was issued without any prior complaint and without first giving ABS-CBN any opportunity to be heard, violating the network's right to due process.
He cited the opinion of former Information and Communications Technology Secretary Rodolfo Salalima that NTC also violated its own rules in issuing the CDO without first issuing a show cause order.

Real said that because there were conflicting opinions from the Department of Justice (DOJ) and the OSG on whether ABS-CBN could continue operations, the NTC should have treated it as a "contested authorization case" which required a pre-hearing conference.
He added that the expiration of ABS-CBN's franchise on May 4 and ABS-CBN Convergence's franchise on March 17 as actually put on hold for 60 days during the community quarantine period by the Bayanihan to Heal As One Act and presidential issuances meant to address the coronavirus pandemic.
NTC's own memorandum issued in March, Real said, extended the validity of NTC-issued permits, certificates and licenses during the lockdown.
The NTC, however, said the memo does not cover franchises.
Real also disagreed with the OSG and NTC's invocation of the case of Associated Communications & Wireless Services (ACWS) to justify closing ABS-CBN's free TV and radio broadcasts.
The Supreme Court, in that case, voided a DOJ opinion allowing a broadcast company to operate without a legislative franchise.
Real pointed out that in the 2003 ACWS case, the broadcast company failed to comply with its franchise requirements but the NTC still gave it a chance to be notified and heard, unlike in ABS-CBN's case when a closure order was immediately issued despite the network's compliance with all the requirements and NTC Commissioner Gamaliel Cordoba's previous commitment to the House of Representatives to issue a provisional authority to ABS-CBN.
Instead, what should apply, according to Real, is the 2009 Divinagracia case which requires the NTC to first file a quo warranto case and obtain favorable judgment before revoking a broadcast company's certificate or permit.
He urged the Supreme Court to immediately act on the petition by issuing a TRO because of the "urgency" of the situation, citing ABS-CBN's P35 million losses daily, the plight of the network's 11,000 workers and viewers who were deprived of the "simple joys of ordinary Filipinos."
Real's petition also asked SC to direct the House of Representatives to act on ABS-CBN's franchise renewal bill, accusing the chamber of "unreasonable delay," "unlawful neglect" and violating ABS-CBN's right to due process and equal protection in failing to act on the network's franchise renewal bills even as it acted quickly on the franchises of other firms.

He cited the swift action on the franchises of GMA Network, which took 11 days in the House, and TV5, which went through the Senate in just 7 days. In contrast, bills seeking to renew ABS-CBN's franchise have languished in the House since 2016.
"Evidently, it is both irresponsible and unfair for anyone to blame ABS-CBN for the supposed non-renewal of its franchise and its purported expiration on May 4, 2020, which led the NTC to issue its void CDO against the operations of ABS-CBN starting May 5, 2020 up to the present," he said.

"This is because the sole and exclusive power to renew or to extend the life of its franchise, even for one (1) minute, does not belong to ABS-CBN but must originate from some very powerful institution otherwise known as the House of Representatives," he added.
Real also asked the Supreme Court to declare whether it was constitutional for the House to pass a provisional franchise in favor of ABS-CBN on first and second reading in one day and if the body can still deliberate on the renewal of a "lapsed or expired" franchise.
This, he said, is to avoid wasting taxpayers' money.
The provisional franchise passed on first and second reading in the House but was eventually recalled to make way for hearings on bills either for a renewal or issuance of a new 25-year franchise.

In filing the petition, Real invoked his right as a taxpayer, registered voter, lawyer and an avid ABS-CBN viewer. He said he was an "aggrieved party" with the proper legal standing to file the petition.
He clarified that he is not affiliated with any group except that he is a San Beda College of Law graduate.
He also said ABS-CBN's Sagip Kapamilya responded to his call to provide relief goods to his hometown in Ticao Island shortly after Typhoon Tisoy struck in December 2019.
Real's petition is a combination of 5 actions involving mandamus (to compel), prohibition, and a petition for declaratory relief (to clarify status).