The road to hell

Certain top lawyers led by the best chief justice we never had, Antonio Carpio, say the National Telecommunications Communication was legally correct in ordering ABS-CBN off the airwaves after its franchise for its broadcast frequency allotment expired.

“From a legal point of view, once your franchise expires, it is as if you don’t have a franchise… if you don’t have a franchise, then the NTC can’t give you any permit,” Carpio told “The Chiefs” on Cignal TV’s One News on Wednesday night. “It’s difficult to fault the NTC here.”

So NTC commissioner Gamaliel Cordoba can come out of his self-imposed hard lockdown and speak for the agency instead of delegating the task to Edgardo Cabarios. The deputy commissioner is looking quite unhappy these days and might develop an acute comorbidity for COVID because of the intense heat directed at the NTC over the ABS-CBN issue.

With both Carpio and the government’s top lawyer, Solicitor General Jose Calida, saying basically the same thing on the NTC’s order, I can believe that the original sin in this mess lies with lawmakers, for indulging the sentiments of their ally at Malacañang.

The ultimate solution also lies with Congress – which is to give ABS-CBN a new franchise.

Call it provisional, call it a limited franchise good for only two or three years: a congressional franchise, passed as a law, is the best way for ABS-CBN to resume operations without worrying about legal challenges.

Here lies the problem for the country’s largest broadcast network: like impeachment, the grant of a legislative franchise is a political exercise. And we all know how it is in our poor country: the road to hell is paved with politicians.

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Despite the brilliance of Carpio, there is also the saying that in dealing with a legal issue, there are as many opinions as there are lawyers in this country.

The lawyers disagree on how a new franchise can be given to ABS-CBN.

Last Wednesday, Cagayan de Oro 2nd District Rep. Rufus Rodriguez filed a bill for a new 25-year franchise for the network. He also pushed for a joint resolution to grant the network a provisional franchise. The resolution will be passed like a piece of legislation by both chambers of Congress – meaning it must hurdle three readings before being sent to President Duterte for his signature.

It can then have the force of law, bypassing the NTC after what Rodriguez described as its “double-cross” of lawmakers.

Carpio disagreed. He cited jurisprudence – on the increase in nurses’ entry-level pay to Salary Grade 5, which was granted by law, and then stopped by the government on the strength of a joint congressional resolution signed by the president of the republic. Carpio noted that before he retired from the Supreme Court as senior associate justice, the SC ruled in favor of the nurses through petitioner Ang Nars.

“A joint resolution is not a law. It just expresses the sense of Congress,” Carpio told us. “Only a bill can be signed by the president and subjected to a veto.”

He points out that the Constitution specifies the process for the passage of a bill into law, and “nothing in the Constitution says joint resolution.”

To grant ABS-CBN any form of franchise, he stresses, “it has to be a bill (calling for three readings) because it notifies the public that this bill could become a law and could bind the citizens.”

If the process is disregarded in granting a franchise, he adds, “it could be challenged because it’s not a franchise embodied in a law.”

Even if both chambers pass the joint resolution in three readings, he says, the franchise will still stand on shaky legal ground: “For purposes of notifying the Filipino people, it has to become a bill.”

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While the NTC cannot be faulted for abiding by the SC ruling on broadcast franchises in a previous case involving Associated Communications, Carpio also pointed out that this case involved a company that was never issued a congressional franchise.

ABS-CBN, on the other hand, can argue that it had been asking Congress for the renewal of its franchise since 2016, and now the pandemic prevented Congress from acting on the request, Carpio said.

While the NTC can’t be accused of grave abuse of authority for following an SC ruling on a similar case, Carpio said, “as a practice,” if a franchise expires while Congress is deliberating on an application for renewal, the NTC usually allows the continuation of operations. “You can also say it has been lenient in the past,” he noted.

Carpio said a limited franchise – one that’s good for a shorter period of two or three years – is legally feasible. This could be a compromise for those who want to continue turning the screws on ABS-CBN but are worried about the political fallout from the controversy.

He cited other legal options for the network.

One is to go straight to the SC and ask for a temporary restraining order on the NTC. The normal venue for appealing NTC orders is the Court of Appeals. But Carpio said ABS-CBN could cite it as “a transcendental issue involving 11,000 jobs” in the middle of a national health emergency.

“This has national significance so I think the SC should accept it as a case,” he said.

So perhaps the SC will grant the petition for a TRO filed yesterday by ABS-CBN.

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Still, its fate ultimately lies with Congress. Carpio noted that the process of passing a franchise bill could be speeded up if it is certified as urgent by the President.

Duterte’s spokesman Harry Roque has ruled this out in cases involving private interest.

Carpio, on the other hand, said there is also “no prohibition” on the President certifying the franchise bill as urgent on the premise that the country needs the network “for public information” especially in this pandemic.

“It’s really the call of the President if he wants to certify it or not,” Carpio told us.

Yesterday, Malacañang said Duterte would sign a franchise bill… if it has no constitutional infirmity.

For the long term, after this controversy, lawmakers might want to de-politicize the issue and delegate their authority to grant franchises for broadcast airwave allotments to another entity.

Carpio noted that this has been done, for example in the case of transport franchises – a power delegated to the Land Transportation Franchising and Regulatory Board.

But if you think lawmakers are willing to delegate their power over broadcast media, the quarantine must be making you stir-crazy.