House, DOJ could have done more for ABS-CBN – FLAG

The Free Legal Assistance Group (FLAG) said on Tuesday, May 5, that both the House of Representatives and the Department of Justice (DOJ) could have done more to allow broadcast giant ABS-CBN to continue operating while its franchise renewal is ongoing.

The National Telecommunications Commission (NTC) served a cease and desist order for ABS-CBN to stop operations Tuesday afternoon, in light of its franchise expiration on Monday, May 4. ABS-CBN went off air before 8 pm Tuesday.

"To be sure, the NTC does not deserve all the blame; a large part of it should be shared by those Members of the House of Representatives who refused to even hear the applications for the franchise renewal before the expiration of the franchise," said FLAG in a statement signed by its leaders Chel Diokno, former Supreme Court spokesman Ted Te, and Manuel Quibod.

The House dragged its feet on long-filed bills for the renewal of ABS-CBN's franchise.

FLAG also said the DOJ could have clarified the power of the NTC.

"(The blame) should be shared as well by other government agencies, like the Department of Justice, who could have clarified the issues involving the power of the NTC when it could have done so but chose not to," said FLAG.

DOJ's lack of a legal opinion

Justice Secretary Menardo Guevarra merely gave advice to the NTC that the principle of equity requires that ABS-CBN be allowed to operate while Congress resolves the franchise bills.

The NTC specifically asked, however, for a legal opinion – a document, that although not legally binding on the requesting agency, carries a lot of weight. If the matter reaches the court, a DOJ legal opinion could serve as a solid defense.

"Hindi namin ibinigay ang legal opinion na 'yun kasi may private party involved, ang ABS-CBN nga, gayunpaman kahit hindi kami nagbigay ng formal legal opinion, ay nagbigay kami ng advice for the guidance of NTC," Guevarra told TV Patrol, shortly before the network went off air.

(We didn't give the legal opinion because there's private party involved, that's ABS-CBN, nevertheless even though we didn't give a legal opinion, we gave the NTC advice for guidance.)

During the Senate hearings, the NTC committed to give ABS-CBN provisional permit, citing Guevarra's advice.

However, over the weekend, Solicitor General Jose Calida warned the NTC against following Guevarra's advice and threatened the commissioners they could be sued for graft.

While he maintains that the principle of equity should work in favor of ABS-CBN, Guevarra said Calida's position is also correct.

"Either way puwede rin naman, kasi sa OSG ay dura lex sed lex, the law may be harsh but it is the law, so to speak, so kung wala kang franchise sorry ka na lang, hindi ka makaka-operate," said Guevarra.

(Either way is correct, because with the Office of the Solicitor General, it's dura lex sed lex or the law may be harsh but it is the law so to speak, so if you don't have a franchise, sorry, then you cannot operate.)

Guevarra said that for him, that principle only applies to a company which never had a franchise to begin with. But for ABS-CBN, which already has a franchise, albeit an expiring one, the justice secretary said its operations could be allowed in the interim.

NTC powers

"The NTC’s order has pre-empted Congressional action in this area exclusively reserved to it by the Constitution and is an exercise of discretion that gravely upsets the constitutional architecture and design," said FLAG.

The National Union of Peoples' Lawyers (NUPL) called the cease and desist order "political retribution."

"We can all argue, debate and weigh in with the legality, propriety, timing, grounds and authority for the ABS-CBN shutdown – while we still can – but it all boils down in essence to this: it is an imperious curtailment of press freedom and spawned by political retribution," said NUPL president Edre Olalia.

Both congressmen and senators have condemned the NTC over its cease and desist order.

Malacañang has backed the NTC saying it respects the decision of a quasi-judicial body. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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