20feb20-Can’t the SC be fair without a gag order?
POSTSCRIPT / February 20, 2020 / Thursday
Can’t the SC be fair without a gag order?
THE SOLICITOR General seems to have a dim view of the capacity of Supreme Court justices to have a fair appreciation of the administration move to cancel the franchise of media giant ABS-CBN if the issues are also debated in public.
We deplore the insinuation of Solicitor General Jose Calida that the justices in the highest court of the land are not capable of discernment and must be aided by a gag order to navigate through the storm of a free public discussion of the issues.
Following up his quo warranto petition for the court to cancel the broadcast firm’s franchise, Calida asked the tribunal Tuesday to gag ABS-CBN Corp. and its communications subsidiary, ABS-CBN Convergence, from issuing statements on the case.
The SolGen said that his plea for a gag order includes the prohibition on the release of statements discussing the quo warranto plea of the “parties and persons acting on their behalf.”
Calida said that ABS-CBN has violated the sub judice rule that restricts parties, witnesses, the general public as well as lawyers and judges from making comments and disclosures related to pending court cases.
He complained that after ABS-CBN issued a statement on Feb. 10 responding to the quo warranto filing, the network engaged in “propaganda in a clear attempt to elicit public sympathy, sway public opinion and, ultimately, to influence the resolution of the case.”
He cited among such violations a video explainer titled “Quo warranto petition laban sa ABS-CBN, ano ang ibig sabihin?” First broadcast on Feb. 14, it explained Calida’s petition and ABS-CBN’s reply, and gave updates on the franchise renewal.
Pardon our saying it, but we think that any SC justice who cannot see through propaganda and must rely on a gag order to stay independent and fair has no business sitting, toga and all, in the highest court of the land.
The nation is safer exposing itself to the winds of free democratic discourse than hunkering in a cave darkened by state-imposed restrictions on free expression and the robust exchange of public opinion.
• Franchise debate widens to press freedom
THE SURVIVAL problem of ABS-CBN and its subsidiary revolves around the renewal of its 25-year legislative franchise that expires on March 30, 2020.
In the normal course, its renewal will be rejected or passed upon by the Congress before being sent to the President for him to approve, veto or allow to lapse into law. If he vetoes it, the Congress could override the veto.
The prospects of its renewal dimmed after Duterte expressed misgivings, citing the network’s alleged failure to air his TV campaign ads in the 2016 presidential election. His stance has influenced the attitude of his loyalists in all branches of government.
To this non-lawyer, it is not clear why Duterte did not just file the proper cases (estafa?) against ABS-CBN but chose to drag into the mire the entire ABS-CBN “kapamilya” that includes its employees, talents, contractors, subscribers and worldwide following.
Seen in the context of other Duterte moves against critical and independent sectors of media, his administration’s handling of the case has started to evolve into a press freedom issue.
A quo warranto is described as a “special civil action brought in the name of the state against a person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; or against a public officer who does or suffers an act which, by law, constitutes a ground for the forfeiture of his office; or an association which acts as a corporation without being legally incorporated or without lawful authority to act.”
The SolGen’s quo warranto action looks like a shotgun blast to foreclose the emerging question of press freedom. It aims for the jugular of the franchise by alleging violations that could warrant its revocation before its expiry, or its non-extension if overtaken by March 30.
As the row started to spill over to the basic question of freedom of expression, the resort to a gag order could help prevent the widening of the field of combat to areas having to do with civil liberties where the administration is vulnerable.
There is no gag order yet, the parties having been given five days to respond after receiving the SC order to comment on the OSG filing.
Congressmen were talking yesterday of what they thought should be done, with House leaders lining up behind Malacañang’s reluctance to renew the franchise.
Buhay Party-list Rep. Lito Atienza was prompted to remark: “Yung ayaw magtrabaho ang laki ng pinto ng Kongreso, umalis na kayo. There are many competent Filipinos who can serve better. Ayaw ninyo aksyunan dahil takot kayo, isara na lang natin ang Kongreso.”
A number of senators vowed to proceed with a public inquiry although its practical effect on renewing the franchise is deemed minimal. Minority Leader Franklin Drilon filed a joint resolution seeking to extend the validity of the franchise until the end of 2022.
The Management Association of the Philippines, Makati Business Club, Institute for Solidarity in Asia and the Institute of Corporate Directors called on the Congress to consider the bedrock issues of media freedom and free enterprise in their deliberations.
Socioeconomic Planning Secretary Ernesto Pernia said its non-renewal may hinder attaining diversity in the economy and fostering competition. He warned that investor confidence might dip if the government is seen as interfering in a firm producing services desired by the public.
Nicholas Bequelin, regional director of Amnesty International, said: “The authorities are cracking down not just on the TV network but also on the right of every Filipino to freely express themselves. This (gag order) plea must be withdrawn.”
The government’s efforts to silence the press would only invite more criticism, he said, adding: “The government would do better by listening and addressing what is driving such criticism rather than resorting to legal theatrics to suppress human rights.”
(First published in the Philippine STAR of February 20, 2020. Follow the author on Twitter as @FDPascual.)
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