Solicitor General Jose Calida served as the guest of honor in the 67th founding anniversary of Criminal Investigation and Detection Group at the Camp Crame in Quezon City on February 10, 2020.
The STAR/Michael Varcas
Calida cites 'transcendental importance' in case vs ABS-CBN: What is it?
Kristine Joy Patag (Philstar.com) - February 11, 2020 - 8:45am

MANILA, Philippines — With a little over a month to renew its legislative franchise, network giant ABS-CBN faces a legal challenge to its existing one: Solicitor General Jose Calida ran to the Supreme Court to ask it to revoke the franchise altogether.

Calida asked the high court to “forfeit the franchise” of ABS-CBN and its subsidiary, ABS-CBN Convergence which operates the networks’ TVPlus and now defunct ABS-CBN mobile.

In a statement after the filing, the solicitor general said: “We want to put an end to what we discovered to be highly abusive practices of ABS-CBN benefitting a greedy few at the expense of millions of its loyal subscribers. These practices have gone unnoticed or were disregarded for years.”

Calida accused the ABS-CBN of the following violations:

  • That ABS-CBN launched its pay-per-view channel in ABS-CBN TVPlus, KBO Channel, without permit from the National Telecommunications Commission.
    As of February 2019, despite the absence of any permit from NTC and guidelines on conditional access, the KBO Channel inveigled 1.2 million unique TV Plus consumers to register in the service,” the petition read.
  • That ABS-CBN issued Philippine Deposit Receipts to foreigners through ABS-CBN Holdings Corporation, which violates the foreign ownership restriction on mass media in the Constitution.
  • That ABS-CBN Convergence usage of Multi-Media Telephony’s franchise without approval from the Congress. Calida also said that the subsidiary has yet to publicly offer its outstanding capital stock, which violates Section 21 of RA 7295.

Constitutional Law professor Tony La Viña said in an ABS-CBN report said that the supposed violations of the network should not be raised at the SC, which is not a trier of fact.

"The Supreme Court should just dismiss this on the basis that it is the wrong venue, wrong first venue to deal with these issues," La Viña was quoted as saying in an ABS-CBN report.

Calida: Case is of transcendental importance

Calida, who has had a winning streak at the SC, justified going to the SC saying the case "is of transcendental importance and of first impression."

He said that the SC allows exceptions in the hierarchy of courts, as cited the SC in Diocese of Bacolod v. Commission on Elections:

A second exception is when the issues involved are of transcendental importance. In these cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity of prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial protection.

Calida also cited Ang Nars Party-list vs Executive Secretary where the SC relaxed the hierarchy of courts doctrine as it noted that the case involves nurses who stand to benefit from a 17-year-old law.

The SC, in the ruling penned by then-Senior Associate Justice Antonio Carpio, said: “It is in the best interest of all concerned for the Court to put an end to this controversy by relaxing the rules on hierarchy of courts.”

In making his case against ABS-CBN, Calida raised that ABS-CBN Corp. is the “largest media conglomerate in the country” that can shape public opinion on variety of issues.

He also said that abuse of franchise “is a matter of public concern that calls for an action by the State that granted the franchise.”

Calida also pointed out that jurisprudence in the revocation of a television or radio company’s franchise has yet to be laid down.

“This case presents issues that the Court can resolve to serve as precedent. It is an opportunity that the Court must seize to draw the line in future cases,” he added.

Meanwhile, at least eight bills calling for the renewal of ABS-CBN franchise remain pending before the Congress.

What the SC said on transcendental importance in Gios v Samar

In ruling on a plea by a group of Yolanda victims fisherfolk assailing the “bundling” of airport operations projects, the SC discussed the doctrine of hierarchy of courts.

Associate Justice Francis Jardeleza, who has now retired from the SC, quoted jurisprudence in Gios vs Samar:

There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitioners for the extraordinary writs.

In the decision, promulgated on March 2019, the SC said it felt the “need to reaffirm the policy its concurrent jurisdiction over issuances of writs".

It noted that there has been a “growing tendency” among litigants and lawyers to resort to the highest court of the land when applying for writs.

Petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus can be filed before the SC, Court of Appeals and the Regional Trial Courts.

“The doctrine of hierarchy of courts guides litigants as to the proper venue of venue of appeals and/or the appropriate forum for the issuance of extraordinary writs,” the high court said.

The SC noted that “parties are directed, as a rule, to file their petitions before the lower-ranked court.”

“Failure to comply is sufficient cause for the dismissal of the petition,” it stressed.

READ: SC rejects Yolanda victims' plea vs airport contracts, stresses it is not a trier of fact

The SC said that in looking at cases invoking the exceptions on the hierarchy of courts doctrine, the nature of the question being raised is crucial.

The tribunal stressed: “To be clear, the transcendental importance doctrine does not clothe us with the power to tackle factual questions and play the role of a trial court.”

In Gios vs Samar, the SC also said that the “only circumstance” that it took cognizance of a case “in the first instance” or a case to be heard for the first time, despite presence of factual issues is when it reviewed the sufficiency of factual basis on President Rodrigo Duterte’s declaration of martial law following the Constitution mandate.

ABS-CBN ABS-CBN FRANCHISE EXPLAINER JOSE CALIDA QUO WARRANTO SUPREME COURT
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