Granting franchises is an exclusive legislative power, but there was a two-month window between the shutdown of broadcast giant ABS-CBN a year ago on May 5, 2020, and the lower chamber's franchise kill on July 10. In between was the Supreme Court that chose not to do anything.
The continued shutdown of ABS-CBN, the biggest broadcast network in the Philippines, mirrored an entangled 3 branches of government, with the judiciary proving to be passive.
On August 25, 2020, the Supreme Court en banc junked ABS-CBN's petition challenging the May 5 cease and desist order (CDO) of the National Telecommunications Commission (NTC). But this was only because the petition was already moot – their franchise had been killed at the time.
Associate Justice Marvic Leonen said the issue "should have certainly invited more exacting inquiry from this Court," saying that if not for mootness, ABS-CBN showed it had the right to the injunction because of violations of due process and equal protection.
Legally, an injunction from the Supreme Court would have had no legal effect on what the House of Representatives decided two months later: killing the network's franchise bid.
But it could have had "practical and political" impacts, said legal and political analyst Tony La Viña.
"Practically and politically, it could have been different if they were still operating on a provisional permit as they can keep on doing that until Congress decided. [Congress] could have dribbled this to the end of the Duterte term," La Viña told Rappler.
On May 5, 2020, when ABS-CBN's 25-year franchise expired, the NTC issued a CDO to take them off the air, pressured by a letter from Solicitor General Jose Calida. He threatened NTC officials with a graft suit.
This caused the different branches of government to get entangled, along with different executive agencies, because the House leadership was, at the time, willing to grant ABS-CBN provisional authority – or a permit to air while the franchise hearings were ongoing.
This position was based on signaling from Justice Secretary Menardo Guevarra. (READ: EXPLAINER: What are legal grounds for ABS-CBN to air after May 4?)
Guevarra put it on record that he believes there's a gap in the law: that there is no guidance on what to do when a franchise is about to expire and the renewal hearings, which are taking too long, are beyond the company's control.
The en banc acted only in August when the lower house already sealed the fate of the franchise, leaving no other choice for the High Tribunal but to junk the network's petition for being moot. Killed and shuttered ABS-CBN, in the end, got no help from the Supreme Court at all.
"Theoretically yes [they could have acted sooner], but the Supreme Court, like most of us, was at the time grappling with the pandemic," said John Molo, chairman of the University of the Philippines or UP Law's political law cluster.
It was a unanimous vote, but in his separate concurring opinion, Leonen said "one cannot but help note the extraordinary challenges [ABS-CBN] faced."
"That special attention, which resulted in the protracted process to decide on the renewal of a franchise that petitioner had held for decades, should have certainly invited more exacting inquiry from this Court," Leonen said.
Although the decision was based on mootness, Senior Associate Justice Estela Perlas Bernabe's ponencia touched on the merits of the case.
Could ABS-CBN, or any franchise holder for that matter, be given provisional permit to air when it has no franchise during such period?
The decision said this: only an enacted franchise law is a valid permit to air.
"What is sufficiently clear to the Court is that, under our present legal framework, a legislative franchise granting broadcasting entities the privilege to broadcast their programs through television and radio stations in the country must be in the form of a duly enacted law," said the decision.
The decision said that even if the Court voided the NTC's CDO, ABS-CBN would still have no power to air because its franchise already expired.
"Even if the CDO is annulled, ABS-CBN cannot altogether resume its broadcast operations through its radio and television stations because its legislative franchise therefor had already expired," said the decision.
Molo agreed that ABS-CBN "had a strong argument" that the hastily-issued CDO violated its right to due process and equal protection, seeing that other entities had been allowed to operate, pending renewal of their franchise. "At least [strong] enough to justify the relief," said Molo.
"It's hard to gauge [if it could have an effect on the franchise]. Having seen what happened, it certainly looks like the House of Representatives hearings only had one possible ending," Molo said.
Because the decision was based on mootness, Molo said the discussion on merits would not necessarily apply to other companies dependent on franchises.
"It's tricky to process a procedural decision precisely because it did not go into the merits. You get into a lot of what ifs," said Molo.
Guevarra advocated for provisional authority as an equitable solution, even though retired justices insisted jurisprudence is clear that a permit is not allowed.
Molo said that "had it (the decision) gone into the merits, there would have been space for a more nuanced approach just like what the Secretary of Justice was advocating."
Guevarra said his position remains the same. “The DOJ has not wavered in its position that like other radio/TV companies in the same situation before, ABS-CBN should have also been allowed to continue operating, on equitable grounds, while awaiting congressional action on the renewal of its franchise,” Guevarra told Rappler.
Leonen noted that there was never a clear reason why the franchise bill hearings got stalled in Congress.
"Therefore, the delay in the franchise renewal deliberations for no technical reason at all effectively silenced petitioner, which amounts to a prima facie censorship," said Leonen.
"Indeed, such exercise of censorship is an assault on the right to free speech that is engraved in our fundamental law," added the justice.
The franchise hearings in the lower house dedicated one whole day to discussing – and tearing apart – ABS-CBN's programs, which constitutional law experts said amounted to content-based regulation, which is prohibited under our laws.
"I am not under the illusion that petitioner only produces quality programs aimed to educate and inform the public. Nor were all its presentations near the kind of quality art deserving of attention from its audience," Leonen said.
But Leonen acknowledged that ABS-CBN's case shows "the classic chilling effect on expression: that an experienced network with great impact on many of our far-flung rural areas can be silenced."
Without Supreme Court action, what was gained was hindsight.
"The hindsight that history provides may be a balm for future generations, but it is no consolation for the present one," said Leonen.
"But it is for what history may teach a future generation that can inspire more and continue to speak, to inform, and to shape public opinion so that it is more in accordance with the truth. The sovereign Filipino people – not only the kapamilya – deserves no less," said Leonen. – Rappler.com