POSTSCRIPT / July 26, 2020 / Sunday


Philippine STAR Columnist

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Sharing Enrile’s view of ABS-CBN puzzle

TODAY is the day before the much-awaited State of the Nation Address of President Duterte at the opening joint session of the 18th Congress meant mostly to assure his countrymen looking forward to the more comfortable life that he had promised them.

While awaiting the President’s announcement in his SONA of how he intends to save the nation from the rampaging pandemic and a retreating economy, we share below excerpts from an article posted May 17 on Facebook by the brilliant lawyer and legislator Juan Ponce Enrile.

It is about what the 96-year-old legal eagle calls “The ABS-CBN Puzzle”. His essay being too long for our space, we presumed to boil it down to fit. Here goes JPE:

The Constitution requires that: “The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such citizens.” [Article XVI, Section 11 (1)]

Since mass media business operations, like radio stations, broadcast televisions, or cable televisions use sovereign assets of the State — such as frequencies and public easements — in their business operations, they are required by the Constitution to have legislative franchises before they start their business and broadcast operations. These franchises are granted by Congress for a specified and limited duration.

The Constitution provides: “No franchise, certificate, or any other form of authorization for the operation of public utilities shall be granted … for a longer period than 50 years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by Congress when the common good requires… [Article XII, Section 11]

Way back, ABS-CBN acquired legislative franchises that enabled it to own, operate, and manage, as it did over the years, vast mass media business enterprises. These enterprises made ABS-CBN a politically and economically powerful and influential business organization.

But as the years went by, like all finite things, these franchises reached the terminal end of their specified and limited existence, and they expired. For unknown reasons (at least to me), ABS-CBN was not able to have its franchises renewed or extended by Congress.

Hence on May 4, 2020, which was the terminal end of its franchises, and by virtue of the Constitution and the law, the National Telecommunications Commission issued a cease and desist order to ABS-CBN to immediately stop it from continuing its mass media businesses and broadcast operations.

The NTC is the government agency vested with the power and responsibility of supervision, adjudication and control over all telecommunications services in the country. It is, in fact, a creation and delegated agency of Congress.

The NTC cease and desist order perforce abruptly stopped all the businesses and broadcast operations of ABS-CBN. Political pandemonium broke loose and intervened. Blames splashed all around. When the political storm subsided somewhat, NTC ended up the bad guy and the convenient whipping boy.

All along, a bill seeking to extend ABS-CBN’s expiring franchises was previously filed in the House of Representatives. But it languished in the House for quite some time without action.

In the meantime, the Solicitor General filed with the Supreme Court a quo warranto proceeding against ABS-CBN for alleged violations of its franchises and also of the constitutional mandate that “The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or associations wholly-owned and managed by such citizens.”

The House had proposed to grant a temporary franchise to ABS-CBN. But does Congress have the power or authority to grant such a temporary franchise to ABS-CBN, or to anyone else similarly situated, to enable it to carry on the business of a mass media enterprise whose franchises have already reached their end? I do not think so.

Other subsidiary questions would follow: How temporary would the temporary franchise be? Would the duration of that temporary franchise be deducted from the maximum period of 50 years allowed under the Constitution?

And if Congress, for whatever reason, would not repeal the law granting ABS-CBN a temporary franchise, one would see for the first time in our legal history a situation where two major branches of our free and democratic government — the Supreme Court and the Congress — taking opposite positions on a legal issue to the great advantage and benefit of a giant mass media business enterprise in direct violation of our Constitution. (That move to grant a temporary legislative franchise to ABS-CBN has been overtaken by events and dropped. — fdp)

In the wake of the franchise brouhaha, some ABS-CBN partisans raised the right to press freedom to defend the beleaguered mass media enterprise. They argued that NTC’s cease and desist order violated ABS-CBN’s press freedom.

With due respect to the partisans, I could not see how that argument would fly. From the very start, ABS-CBN knew that its right to engage in mass media broadcast as a business is only for a specified and limited duration, only until May 4, 2020, and not more. That was why the owners of ABS-CBN caused the filing of a bill in the House of Representatives to extend its franchises.

The specified terms of ABS-CBN’s franchises are limitations on its press freedom. The press freedom of ABS-CBN as a business enterprise was not indefinite. It was circumscribed and limited by the provisions of its legislative franchises which said only until May 4, 2020.

(First published in the Philippine STAR of July 26, 2020)

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