Menardo Guevarra —GRIG C. MONTEGRANDE
MANILA, Philippines — Media giant ABS-CBN Corp. may continue to remain on-air after its 25-year congressional franchise has expired even without a provisional permit from the National Telecommunications Commission (NTC) or affirmative congressional action, Justice Secretary Menardo Guevarra said on Monday.
At the Senate hearing on the TV network’s franchise, Guevarra said the 1987 Constitution explicitly stated that only Congress was authorized to grant or revoke a broadcast franchise, apparently contradicting Solicitor General Jose Calida’s petition for the Supreme Court to annul the soon-to-lapse franchise.
The justice secretary noted that since the network’s franchise became effective 15 days after its publication on April 19, 1995, its life would be until May 4, not March 30 as earlier reported.
“The grant of a franchise is an exercise of sovereign power and under our Constitution, that power is vested (in) Congress,” Guevarra said at the hearing presided over by Sen. Grace Poe.
“By necessary implication, such power of Congress also includes the power to prescribe the rights of a franchisee-applicant pending final determination of the renewal of its franchise by the Congress,” he said.
Guevarra said there was no clear-cut provision in any existing laws, including Republic Act No. 7966 granting ABS-CBN’s franchise, stating the status of a media network’s operations during the pendency of its application for franchise extension.
“When there is a gap in the law, equity comes in to fill that gap. Equity is the principle by which substantial justice may be attained in cases where the prescribed or customary forms of ordinary law are inadequate,” he said.
Interviewed by reporters, Guevarra said it would be better for the Senate and the House of Representatives to pass a joint resolution allowing NTC to issue provisional authority for ABS-CBN’s continued operations while awaiting the lawmakers’ action on its franchise application.
Asked what would happen if Congress opted not to adopt a joint resolution after ABS-CBN’s franchise expires on May 4, the justice secretary said the answer was to continue the practice if there was no congressional resolution.
“But it would be better if there’s a resolution (from Congress) because if you depart from the practice that you have been used to, that will be discriminatory,” he said.
Roles of OSG, DOJ
Sen. Francis Tolentino, a lawyer, pointed out that Guevarra’s opinion clashed with Calida’s decision to question the legality of ABS-CBN’s franchise in the high court, as he noted that the Office of the Solicitor General (OSG) was an attached agency of the Department of Justice (DOJ).
“In this scheme of confusion, your one hand- the OSG- is asking the Supreme Court to deny (the franchise) while here your are telling (NTC) that (a provisional authority) may be granted. What’s the wisdom to this?” Tolentino asked Guevarra.
The justice secretary replied: “The (OSG) is an autonomous unit. It’s only attached to the DOJ for budgetary purposes.”
“I am here not in connection with the quo warranto proceedings, but in connection with the issue of what happens in the interim while a renewal of a franchise bill is being considered by Congress,” he said.
Guevarra said while Calida’s action “is an attack on the existing franchise,” his view centered on how to deal with the current situation of ABS-CBN’s legislative license.
Calida did not attend the inquiry, telling Poe in a letter that the issues her committee would discuss were the same legal questions he raised in his quo warranto petition in the Supreme Court.
Precedents
Poe, who initiated the hearing as Senate public service committee chair, pointed out that NTC had allowed several broadcast firms, including ABS-CBN’s rival GMA7 network, to operate while their franchise renewal application was pending in Congress.
Showing official transcripts of previous Senate hearings on legislative franchise applications, Poe noted that NTC Commissioner Gamaliel Cordoba had told senators that broadcast firms were allowed to stay on-air if Congress had yet to formally act on their franchise.
Quizzed by Poe, Cordoba admitted that NTC had allowed franchise holders to operate pending the renewal of their congressional authority, among them Smart Communications Inc., Globe Innove and the radio stations owned by the Catholic Bishops’ Conference of the Philippines.
“If the NTC decides to give the provisional license for ABS-CBN to operate, this is not a special treatment. It has been done before,” Poe said.
DOJ opinion
Pressed by Senate President Pro Tempore Ralph Recto, Cordoba said he would wait for Guevarra’s reply to his request for a legal opinion before deciding if he would grant ABS-CBN a provisional authority to operate.
But the justice secretary said that he would not render any legal opinion on the matter because it involved a private entity and that the controversy would later become a justiciable issue.
Speaking with the media after the six-hour proceedings, Poe said her committee would come up with recommendations amending the law to specifically authorize broadcast firms to proceed with their operations during the congressional deliberations of their existing franchises.
She said ABS-CBN president Carlo Katigbak and other top executives of the network were able to adequately explain the issues hurled against the media company, including the network’s supposed tax deficiencies and the use of Philippine depository receipts.
“The humility of ABS-CBN executives were appreciated here in the Senate. What they are going through is not easy,” Poe said.
Speaker allays fears
In the House, Speaker Alan Peter Cayetano on Monday sought to allay fears of a looming shutdown of ABS-CBN, as he pounced on critics and naysayers for “toadying” to the broadcast giant and painting a doomsday scenario that he claimed was unlikely to happen.
“When we said it will not close down, we stand by that. If I have to, I can physically go there and turn on the transmitters myself. I’ll do it. Chairman Chicoy (Palawan Rep. Franz Alvarez of the House legislative franchises committee) will do it,” he said.
“The reality is, if we wanted it shut down, then we would have set a hearing and denied it. Or we wouldn’t hear it and tell the NTC ourselves to shut it down. Why do we have to talk to you with forked tongues? What do have have to gain by lying to you?” he said.
Capitulating to public pressure, the House legislative franchises committee finally opened discussions on ABS-CBN’s franchise application on Monday by accepting position papers for or against the renewal of the broadcast giant’s license.—With a report from DJ Yap