Guevarra won't issue formal opinion in ABS-CBN issue

MANILA, Philippines (3rd UPDATE) – The Department of Justice (DOJ) will not issue a legal opinion on the ABS-CBN franchise issue after all, even after Justice Secretary Menardo Guevarra already made a statement to the Senate on Monday, February 24.

"Alam mo, sa totoo, hindi kami magbibigay ng legal opinion sa National Telecommunications Commission (NTC)," Guevarra told reporters Monday afternoon after he was excused from the Senate hearing. (You know, to be honest, we will not render a legal opinion to the NTC.)

The NTC asked the DOJ for a legal opinion on whether ABS-CBN can continue operating after its franchise lapses on May 4, not March 30, because the franchise took effect 15 days from the publication of the March 30, 1995 law which was on April 19, 1995.

While legal opinions are not binding, they carry great weight and can be used as a legal defense when the case reaches court.

"Because our legal opinion will not be binding on a private company who may actually go to court to have the matter resolved. That's one reason kung bakit kami magde-decline (why we are declining)," said Guevarra.

Earlier in the morning, Guevarra told the Senate that in his view, Congress will have to give the NTC the authority to issue a provisional permit to ABS-CBN to continue operating in the meantime.

Guevarra said the issue is speculative.

"How do we know that in fact Congress will not be able to act on it before May 4?" said Guevarra.

Guevarra and Calida

Guevarra also told the Senate relevant laws do not discuss what would happen if a franchise lapses and the application for renewal has not been approved.

"When there is a gap in the law, equity comes in to fill the gap," said Guevarra, citing examples of broadcast companies whose franchises had lapsed but were allowed to continue operating until their renewal was approved.

NTC Commissioner Gamaliel Cordoba said they would allow ABS-CBN to continue operating after May 4, following the principle of equity.

"Yes your honor based on the advice of the Secretary of Justice," Cordoba said.

Senator Sherwin Gatchalian posed a hypothetical question: If Solicitor General Jose Calida files an administrative complaint against ABS-CBN before the NTC after May 4, and asks the agency to stop the network's operations, would the NTC heed Calida?

Cordoba said Guevarra's opinion would be followed. 

"Medyo mahirap po ang tanong ninyo but that will be two Cabinet secretaries and well, based on, may lumabas na department order before that the opinion of the secretary of justice would take precedence. Ibig sabihin sila ang puwedeng mag-render ng opinion, hindi po ang Office of the SolGen," said Cordoba.

(That question is difficult but that will be two Cabinet secretaries and well, based on a department order, it's the opinion of the secretary of justice that would take precedence. It means it's the DOJ that can render an opinion, not the Office of the Solicitor General.)

But what opinion will be the basis of the NTC for its decision if Guevarra refuses to issue one?

"My statement at the Senate this morning was the signal to everyone concerned, including the NTC," said Guevarra.

Guevarra added: "Even when we decline to render formal legal opinions, we nevertheless state something in our reply for the guidance of the requesting party."

He later said in an exchange with reporters that he is just deferring to Congress, an independent branch of government.

"There's another major reason why we're declining a formal legal opinion: the determination of the rights of a broadcast company after the expiration of its franchise, but pending congressional deliberations on its renewal belongs to the realm of the legislature over which the SOJ has no revisory authority," Guevarra said.

No Calida

Calida on Monday declined Poe's invitation to the hearing, citing the sub judice rule.

"Please note that the 'operations of' and 'compliance by' ABS-CBN Corp, together with the possible 'extension of franchise' are the lis mota of the said petition," Calida said in a letter sent to Poe.

"While the Supreme Court has yet to issue a formal gag order on the parties and their representatives, the pendency of the case, nevertheless, brings it under the sub judice rule which prohibits the undersigned both as petitioner and as officer of the court from sharing my views and commenting on the merits of the case to maintain 'the dignity and authority of the court' in the administration of partial justice," he added. – Rappler.com

STORIES FROM THE FEBRUARY 24 SENATE HEARING: 

 

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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