Can a quo warranto petition be filed against ABS-CBN?

MANILA, Philippines (UPDATED) – With the franchise of broadcast giant ABS-CBN set to expire on March 30, or a little more than two months from now, the Lopez-owned television station may be facing another threat to its survival in light of a report that Solicitor General Jose Calida will file a quo warranto petition against its franchise.

Citing "unimpeachable sources," the pro-administration Manila Times reported on January 16 that Calida will file the petition to ask the Supreme Court to revoke ABS-CBN's franchise.

The National Union of Journalists of the Philippines (NUJP) said there are 11,000 jobs on the line, in what can be the worst threat to ABS-CBN since its closure and takeover during the Marcos Martial Law period.

President Rodrigo Duterte has been out against ABS-CBN since his presidential victory, claiming that the network did not air his political ads despite payment during the campaign. In his recent rants against the network, Duterte told ABS-CBN to just sell, amid speculations that his campaign donor, Dennis Uy, is looking to buy. No deal has been made.

Can Calida actually file a quo warranto?

The Rules of Court

Rule 66 of the Rules of Court authorizes the Solicitor General or a public prosecutor to initiate a quo warranto petition against a public officer deemed to be usurping his or her office, or having been found to not be qualified for office in the first place.

This is what happened to ousted chief justice Maria Lourdes Sereno, whose supposed non-submission of Statements of Assets Liabilities and Net Worth (SALN) reflected a lack of "integrity" which is one of the constitutional requirements for a justice of the Supreme Court.

However, Section 1(c) of Rule 66 said the petition can also be filed against "an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act."

Constitutional law professor Tony La Viña said Section 1(c) will not apply to ABS-CBN because the provision attacks a corporation that was not "legally incorporated."

"My opinion is that Rule 66 applies only to invalid appointments and invalid franchises so [it] does not apply to ABS-CBN," said La Viña.

Constitutional and political law professor John Molo said that there has never been a successful quo warranto case against a broadcast franchise. Molo added that while Rule 66 can be used, it doesn't mean it can lead to a strong case.

"This is perhaps the reason why to begin with, we have never seen it exercised this way before. Then again, the current Solicitor General has an unparalleled winning streak before this Supreme Court – most of them on very novel legal theories, strategies," said Molo.

Is there precedent?

The 2009 Supreme Court decision Divinagracia vs Consolidated Broadcasting System contemplated the possibility of filing a quo warranto petition against a broadcast network which holds a legislative franchise, using Section 1(c) of Rule 66.

Petitioner Santiago Divinagracia asked the National Telecommunications Commission (NTC) to revoke the certificates of public convenience (CPCs) and other licenses issued to Consolidated Broadcasting System Inc. (CBS) and People's Broadcasting Service Inc. (PBS).

The NTC licenses were requisites for a prior legislative franchise given to CBS and PBS. The same is required of ABS-CBN under Section 3 of its franchise law, or Republic Act No. 7966, which says "the grantee shall secure from the National Telecommunications Commission the appropriate permits and licenses for its station and shall not use any frequency in the television or radio spectrum without having been authorized by the Commission."

In the CBS and PBS case, the Supreme Court said there is no law that allows an administrative agency such as the NTC to take away the franchise granted by Congress.

In contemplating another way, the SC said in that case: "There is in fact a more appropriate, more narrowly-tailored and least restrictive remedy that is afforded by the law. Such remedy is that adverted to by the NTC and the Court of Appeals – the resort to quo warranto proceedings under Rule 66 of the Rules of Court."

Molo said the case may be applied to ABS-CBN, but noted that in deciding Divinagracia vs CBS, and in fact denying the petition, "the High Court very wisely sifted through the issues and saw the free speech and free pressimplications of what would have been normally a staid case."

"At this point, and with what is at stake, the Court would be looking at the Institutional ramifications of a ruling on ABS-CBN’s case...ABS-CBN’s case will be a good chance for the Court to affirm to the public, and hopefully maintain, its role as the protector of constitutional rights," said Molo.

 

The SC also made a disclaimer by the end of that decision – that it was only ruling on the jurisdiction of the NTC.

"Other regulatory measures of less drastic impact will have to be assessed on their own terms in the proper cases, and our decision today should not be accepted or cited as a blanket shearing of the NTC's regulatory jurisdiction," said the SC.

What happens to ABS-CBN after March?

RA 7966, or the law that gave ABS-CBN its 25-year franchise in 1995, is silent on whether ABS-CBN can continue operating if March 30 comes and its franchise has not been renewed by Congress.

The House of Representatives has been sitting on the bills seeking to renew ABS-CBN's franchise. This is despite both Speaker Alan Peter Cayetano and House committee on legislative franchises chair Franz Alvarez saying there would be committee deliberations on the measures.

Senator Sherwin Gatchalian said a quo warranto petition is "not needed" and that the matter should be left to Congress.

"Ang franchise ay may natural deadline, di na kailangan ng quo warranto. Importante mag-umpisa na ang hearing, pag-usapan ano ang naging pagkukulang, ano ang dapat iimprove. At least lumabas doon ang issue," Gatchalian told reporters on Thursday, January 16.

(Each franchise has a natural deadline, so a quo warranto is not needed. What's important is that hearings start, so that we can talk about what the gaps were, what can be improved. At least the issues are fleshed out there.)

Constitutional law professor Dan Gatmaytan pointed out that the Divinagracia vs CBS case also said "the viability of quo warranto in the instant cases does not preclude Congress from enforcing its own prerogative by abrogating the legislative franchises of respondents should it be distressed enough by the franchisees’ violation of the franchises extended to them."

Molo agreed, saying: "Why not let Congress decide it first? After all, Congress can in effect cancel the franchise by refusing to renew it. Remember, the High Court has refused to act before when it noted that Congress had a pending bill that could provide the relief being sought by a litigant – and those bills didn’t have a time limit."

Before ABS-CBN, the Securities and Exchange Commission (SEC) revoked Rappler's certificate of incorporation – a matter remanded to the SEC by the Court of Appeals. It remains pending. 

Duterte has also made threats against the Philippine Daily Inquirer. Under the Duterte administration, the Prieto family of the Inquirer has had to face legal cases such as the takeover of their property Mile Long in Makati, and several tax cases against the family's other companies. – with reports from Mara Cepeda and Aika Rey/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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