Does ABS-CBN Still Have A Recourse Following The Denial Of Its Franchise

Bid?

https://www.onenews.ph/does-abs-cbn-still-have-a-recourse-following-the-denial-of-its-
franchise-bid
Lawyers suggest various strategies for ABS-CBN Corp. to have a franchise, including
questioning what critics see as the House of Representatives’ grave abuse of discretion, or
mounting a people’s initiative. But these are untested.
ABS-CBN Corp. may have to wait for a less hostile Congress to be elected in 2022 – or pursue
legal remedies that have not been tested, as some lawyers suggest.

This comes after the House of Representatives’ committee on legislative franchises on July 10
voted 70-11 to deny the broadcast giant’s franchise renewal application.

The committee adopted a resolution based on findings that were anchored on their personal
interpretations of the law – and ignored established jurisprudence and the testimonies of
administrative agencies regarding ABS-CBN’s compliance with the laws and regulations.

(will look for more background for this statement pa hehe)

The outcome of the proceedings, which came after an unprecedented 14 hearings that began only
two months before the expiration of ABS-CBN’s franchise on May 4, drew wide condemnation
from journalists, the academe, human rights advocates, the business sector, and supporters of the
artists who appear in the country’s biggest network.

Perhaps a day too late, the Social Weather Stations reported on Saturday, July 11, that a survey
conducted on July 3 to 6 showed that three out of four Filipinos or 75 percent of 1,555
respondents agreed that Congress should renew ABS-CBN’s franchise. Only 13 percent
disagreed.

Meanwhile, 56 percent of respondents agreed that non-renewal would be a major blow to press
freedom, compared to the 27 percent who disagreed.

Wait two years?

The turnout in the House proceedings surprised Deputy Speaker Vilma Santos-Recto, who voted
in favor of ABS-CBN.

Santos-Recto, who acted in several movies produced by the corporation’s film outfit Star
Cinema, was quoted in reports as saying after the voting that she never thought only 11 of them
supported ABS-CBN. This was because several had expressed support for the bills filed seeking
to renew the network’s franchise.
Senate Minority Leader Franklin Drilon said the outcome showed that “both the legislators and
the executive can wield the sword [of Damocles] at their whim and caprice,” weakening
democracy.

Although he filed a resolution seeking to extend ABS-CBN’s franchise until December 2022,
Drilon said the Senate would no longer be able to act on it and similar proposals due to
constitutional “limitations.”

Franchises are considered private bills, which “shall originate exclusively in the House of
Representatives,” to be concurred in or amended by the Senate under Article 6, Section 24
of the Constitution.

Drilon was not hopeful that the issue could be resolved within the last two years of the Duterte
administration, which holds a super majority in both the House and the Senate.

“Sad to say, ABS-CBN will have to wait until 2022 when the new Congress is elected to apply
again for the renewal of its franchise,” he said in a statement.

Improbable options under the House rules

The Rules of the House of Representatives, adopted during the 17th Congress, allow the filing of
a motion for reconsideration to appeal the vote.

But Section 40 states that it may be done only by a member of the committee “who voted
with majority…during the same meeting or on the same or succeeding day after the
meeting,” and only one such motion may be filed.

(Hala murag diri ta matira ba)

No such appeal was filed by July 11, a Saturday, and not one of the 70 has been reported to take
back his or her vote against ABS-CBN.

Another option is for a lawmaker to file another measure renewing ABS-CBN’s franchise. But
this may prove to be an exercise in futility since the same legislators will decide on the bill.

It is also unclear what will happen to ABS-CBN’s pending petition before the Supreme Court
challenging the National Telecommunications Commission (NTC)’s May 5 cease-and-desist
order against the network’s free-to-air television and radio broadcasts.

The petition was hinged on the NTC’s refusal to allow ABS-CBN to keep operating while its
franchise renewal application is pending before the House – something that could now be
rendered moot and academic.

ABS-CBN corporate communications head Kane Errol Choa did not respond to The Philippine
STAR’s requests for comment on what the corporation plans to do.
The conglomerate can now air its programs only through cable channels Kapamilya Channel,
ABS-CBN News Channel, Jeepney TV, Cinema One, Teleradyo, Myx, Metro Channel and Liga,
as well as their social media channels and online video-on-demand service iWant.

Grave abuse of discretion

Lawyer Edward Chico, however, opined that as a “last ditch effort,” ABS-CBN could
question the House committee’s denial of its application on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction.

Courts usually refrain from tackling “political questions” regarding the wisdom of Congress’
actions if these are not outright unconstitutional or unlawful. It will not even touch upon issues
concerning Congress’ compliance with its internal rules of procedure. This is out of respect for a
co-equal, independent branch of government.

Chico argued that this is only the general rule, with grave abuse of discretion being an exception.
He noted that Article 8, Section 2 of the Constitution gives the Supreme Court the power to
determine the existence of grave abuse of discretion “on the part of any branch or
instrumentality” of the government.

The issue is not only a matter of Congress’ discretion to choose who should be allowed to use
limited airwaves, Chico said.

He expressed belief that this is “a constitutional issue as it affects free speech, expression and the
press.” He said Congress should have limited itself to determining if ABS-CBN has the
technical, financial and logistical capabilities to continue its operations.

“If it imposes more, it may potentially encroach on their right to free expression,” Chico
said.

He also considered the House’s belated action on the long-pending application and its focus on
irrelevant issues to be a form of grave abuse of discretion.

“I really think that ABS-CBN can still question the reported decision as the circumstances would
show that it falls within the exceptions provided for by law. Clearly, it is outside the ambit of
political question, as jurisprudence confirms,” Chico said.

Another lawyer, Randy Blanza, noted that the late dictator Ferdinand Marcos was “able to
perpetuate abuses then by hiding under the cloak of so-called political questions.” At the time,
the 1973 Constitution had not yet expanded the SC’s judicial power to guard against grave abuse
of discretion.

“The framers of the 1987 Constitution's primary objective was to take away from the executive
and legislative that encompassing power to do whatever they want, under the guise of political
question,” Blanza pointed out.
He said ABS-CBN’s case could be a “good test (of whether) the power of expanded judicial
review really exist(s)” or if the doctrine of political question could be wielded again to avoid
such a sensitive issue.

“If the latter happens, we can now brace ourselves for the return of the dark ages of
dictatorship,” he added.

Lawyer Severo Brillantes agreed that the House committee vote “perfectly fits the definition of
grave abuse of discretion: a capricious or whimsical exercise of judgment, so patent and gross,
exercised in an arbitrary and despotic manner by reason of passion and hostility.”

However, he noted that “sadly,” it is within Congress’ broad power to make, alter or repeal
laws on matters of general concern.

“Unless it may be shown that it was exercised in violation of the Constitution, there is no basis to
challenge it before the Supreme Court,” Brillantes stressed.

People’s initiative

There is another option that will not require ABS-CBN to go to court and meet the stringent
requirements of judicial review.

Sen. Francis Pangilinan’s chief of staff Herminio Bagro III and Baliuag, Bulacan Councilor
Enrique dela Cruz Jr. were among the first lawyers to propose resorting to a rarely used power
reserved for Filipins – a people’s initiative.

Article 6, Section 32 of the Constitution requires Congress to “provide for a system of

initiative and referendum” through which the people can “directly propose and enact
laws” or “approve or reject any act or law or part thereof passed by the Congress or local
legislative body.”

This gave rise to the passage of Republic Act No. 6735 in 1989. Section 3(a) of the law provides
for three systems of initiative: a petition proposing amendments to the Constitution (declared
“inadequate” by the Supreme Court in 1997), a petition proposing to enact a national law, and a
petition proposing to enact a local resolution or ordinance.

Dela Cruz, a senior partner in the Divina Law Offices, posted that people’s initiative provides a
“procedure for the Filipino people to directly pass national laws that Congress is unwilling to
pass” – implying that he viewed ABS-CBN’s franchise to be a “national law” falling under the
second category.

The draft law – ABS-CBN’s franchise in this case – must be signed by at least 10 percent of
the country’s voters and a minimum of three percent of each legislative district’s voters.
After the Commission on Elections (Comelec) verifies the signatures to be genuine, it will
schedule a referendum through which the proposal becomes law if approved by the
majority.
“The best part is – Congress and the President cannot stop this,” Dela Cruz said. “The
voice of the people is the supreme law. All governement authority emanates from the
people.”

The suggestion quickly gained traction among ABS-CBN’s supporters. Meanwhile, Bagro
prepared to call for volunteers to “help thresh out this idea better.”

There is a catch, however: as mentioned above, Article 6, Section 24 provides that private bills
“shall originate exclusively in the House of Representatives.”

It is not yet settled if this means it cannot be the subject of a people’s initiative. University of the
Philippines College of Law lecturer Michael Tiu Jr. said he was “working on ways to show that
this may be allowed.”

Even if RA 6735 did not mention private bills, Dela Cruz argued that “there is nothing in the
Constitution which prohibits the use of people’s initiative for enacting a private bill.”

(diri ta maluya haha huhu)

He argued that if an amendment to the Constitution, the highest law of the land, could be
done through people’s initiative, “there is no logical reason, therefore, to argue that a mere
private bill cannot be enacted directly by the people through people’s initiative.”

Dela Cruz interpreted Article 6, Section 24 to apply only to the laws enacted by Congress and
not through people’s initiative.

“Congress’ delegated power to legislate only comes from the people. The water cannot rise
above its source,” Dela Cruz said.

However, University of the Philippines professor Oliver Xavier Reyes noted that even if the
initiative were successful, there would be a “practical legal problem if by that time, the
frequencies have already been assigned to a different franchise holder with their own legal right
to use reassigned frequencies.”

Internet freedom advocate Marnie Tonson expressed concern that “using People's Initiative to
legislate (sans Congress) a franchise for a private company would open a can of worms.”

“What next? People's initiative for a State Religion?” Tonson wondered.

Election lawyer Emil Marañon III said the proposal “sounds cool in theory, but it’s not only
legally problematic, it’s physically impossible.” He pointed out that a national referendum is
similar to a barangay election in terms of expense of around P4 billion and preparation of about
six months.
The Comelec is currently in the middle of preparations for the 2022 general elections, but the
coronavirus disease 2019 (COVID-19) pandemic has forced it to suspend voter registration until
Aug. 31.

Dela Cruz said the SC, in its Sept. 26, 2017 decision on Marmeto versus Comelec, already
ruled that the lack of funds could not be used as an excuse to avoid holding a referendum
on a proposed ordinance in Muntinlupa City.

“Initiative and referendum are the means by which the sovereign people exercise their legislative
power, and the valid exercise thereof should not be easily defeated by claiming lack of specific
budgetary appropriation for their conduct,” the decision stated.

Dela Cruz stressed: “I did not claim that this would be easy. I concede that this remedy will be
difficult. But this should not deter us. Nothing worth having comes easy.”

People’s initiative campaigns have rarely been launched and not one referendum has been held
for a proposed national law, although there were efforts to push for a Pork Barrel Abolition Act
in 2014 in response to controversies surrounding the Priority Development Assistance Fund in
Congress and the Disbursement Acceleration Program of the previous administration.

Philippine Supreme Court Junks ‘People’s

Initiative’ Petition To Rewrite Constitution
Author: 
Julie Javellana-Santos, Arab News
Publication Date: 
Thu, 2006-10-26 03:00

MANILA, 26 October 2006 — Voting 8-7, the Supreme Court yesterday trashed a petition to
change the Philippine Constitution through the “people’s initiative” mode, dealing a blow to
President Gloria Macapagal Arroyo’s move to overhaul the system of government.

Arroyo’s allies went to the Supreme Court after the Commission on Elections (Comelec) in
August refused to verify the 6.3 million signatures in a petition, which sought to replace the
current American-style two-chamber legislature with a one-chamber parliament.

The Comelec rejected the petition, citing a 1997 Supreme Court ruling which said that while the
“people’s initiative” is provided as one of the three methods of amending the constitution,
Congress should first enact a law authorizing such a measure.

In its decision yesterday, the court voted to uphold the previous ruling, saying the changes being
sought this time would constitute a major revision to the constitution. It said the “people’s
initiative” can only be used for lesser amendments to the constitution.
“This court cannot betray its primordial duty to defend and protect the constitution. The
constitution, which embodies the people’s sovereign will, is the bible of this court. This court
exists to defend and protect the constitution. To allow this constitutionally infirm initiative,
propelled by deceptively gathered signatures, to alter basic principles in the constitution is to
allow a desecration of the constitution. ...,” said the majority decision penned by Justice Antonio
T. Carpio.

“To allow such change in the fundamental law is to set adrift the constitution in uncharted
waters, to be tossed and turned by every dominant political group of the day,” it also said.

Voting with Carpio against the initiative were Chief Justice Artemio Panganiban, Associate
Justices Angelina Sandoval-Gutierrez, Consuelo Ynares-Santiago, Romeo Callejo Sr., Alicia
Austria-Martinez, Conchita Carpio-Morales, and Adolf Azcuna.

Voting for the people’s initiative aside from Associated Justices Renato Corona, Cancio Garcia,
Minita Chico-Nazario, Renato Puno, Leonardo Quisumbing, Dante Tinga and Presbitero
Velasco.

Gleo Guerra, the acting spokeswoman of the court, said the court also found that the signatures
were obtained irregularly because they were not appended to the text of the proposed changes.

Jubilation

Opponents of the petition, led by senators, welcomed the ruling and urged the Arroyo
administration to concentrate its efforts on programs that were not divisive.

Vice President Noli de Castro asked charter change proponents to respect the ruling.

“We call on everyone to uphold and abide by the rule of law. Any change in our constitution
must be done according to law and our democratic system,” he said.

Rep. Peter Cayetano, the official opposition spokesman, welcomed the ruling, calling the
Supreme Court “the last bastion of democracy.”

“We should agree and focus on reforms, including political reforms, which can be achieved with
the present constitution and system,” he said.

Senate Minority Leader Aquilino Pimentel Jr. called the ruling “the best news of the century.”

Sen. Franklin Drilon appealed to Malacañang Palace and its supporters “to put the issue behind
us now so that we can address the more important problems of the country such as the need for
more effective poverty-alleviation programs and providing better basic social services to the
people.”

Sen. Edgardo Angara said the high court “has shown once more that it can rise to the occasion
and prove itself and independent and objective institution.”
Sen. Manuel Roxas II called the ruling a “victory for the Filipino people” and a “victory for our
system of checks and balance.”

No Retreat

Presidential Executive Secretary Eduardo Ermita said while “the highest court of the land has
made a decision so there’s no recourse but to follow,” the administration was not conceding
defeat for its bid to amend the constitution. “The president has not lost her resolve for a major
political change, such as the charter change,” Ermita said.

Arroyo says gridlock under the current system makes the government inefficient at addressing
poverty, development and other issues.

Opponents say Arroyo and her allies are pushing the changes to consolidate their grip on power
by abolishing the opposition-dominated Senate, among other proposals.

The president and a newly created prime minister would share power for three years but after
2010, the prime minister would be head of a British-style parliamentary system.

Ermita said petitioners Sigaw ng Bayan and the Union of Local Authorities of the Philippines
(ULAP) also could still appeal the Supreme Court ruling. He noted that the 8-7 vote was too
close and still has a good chance of changing.

He also sounded off Malacañang’s allies in Congress to keep alive the possibility of a constituent
assembly as a fallback mode of amending the charter.

There is a pending resolution in the House of Representatives to convene Congress into a

constituent assembly, which the senators are also opposing.

The third option of amendment is through the more expensive constitutional convention, in
which representatives are elected nationwide by district for the purpose of rewriting the
constitution. Although delegates to a constitutional convention could also be bribed and
manipulated, this option is acceptable to the opposition and other critics of the two other modes
of amendment.

Investigation

Amid the jubilation and dismay, depending on whose camp one belonged, groups opposed to
Arroyo’s plans to overhaul the system, urged the Commission on Audit (COA) to conduct an
independent audit of the expenditures of local government units that supported the campaign for
a people’s initiative.

Rufus Rodriguez, lawyer for deposed President Joseph Estrada, said the ULAP resolution made
it unlikely that the money local government executives donated to the signature drive of Sigaw
ng Bayan “came from their own pocket.”
Counsels for the Defense of Liberties (CODAL) spokesman Neri Colmenares said once an
appeal is filed, they will ask the high court to order ULAP and Sigaw ng Bayan to give an
accounting of their expenditures and funding sources.

“What happened to all the money they used to gather signatures, the money they used for those
paid advertisements on TV and newspapers?” Leah Navarro of the Black and White Movement
asked.

Another people’s initiative opponent, the group One Voice, said the Supreme Court decision
should signal the start of the preparations for the 2007 elections.

“We also call on Sigaw ng Bayan and (ULAP) to submit themselves to this decision and accept
their defeat with grace so that our nation can move forward with greater speed and unity,” it said.

Senators Panfilo Lacson and Richard Gordon echoed calls for investigation.

“It is regrettable that millions of pesos from the public coffers were spent for the failed petition
of Sigaw ng Bayan and ULAP,” Lacson said. “Our countrymen picked up the tab again.”

Gordon said the high court ruling confirmed the “dubious way by which the present people’s
initiative was orchestrated.” (With input from Inquirer News Service & Agencies)

Palace: Let SC decide if people’s initiative can revive ABS-

CBN franchise
MANILA, Philippines — Malacañang on Sunday said it will let the Supreme Court
decide whether or not a people’s initiative may be used to revive the franchise
application of embattled media giant ABS-CBN.

In a statement, presidential spokesperson Harry Roque reiterated that the granting of a

broadcasting franchise is the sole and exclusive prerogative of Congress, citing
Republic Act No. 7925, or the “Public Telecommunications Policy Act.”

He also acknowledged that there are talks about the possible invoking of the people’s
initiative to revive the franchise bid of ABS-CBN.

“As provided in Article VI, Section 32 of the Constitution, Congress must ‘provide
for a system of initiative and referendum, and the exceptions therefrom, whereby the
people can directly propose and enact laws, or approve or reject any act or law or part
thereof passed by Congress’,” Roque said.
“That system is presently found in Republic Act No. 6735, or the Initiative and
Referendum Act,” he added.
However, the Palace official stressed: “Whether the franchise of ABS-CBN may be
granted through a people’s initiative despite the clear wording of RA 7925, whether it
matters that a franchise bill is a private bill that must ‘originate exclusively in the
House of Representatives’ in accordance with Article VI, Section 24 of the
Constitution — these and related questions we leave to the Supreme Court, as the
final arbiter of the appropriate interpretation of these provisions in the Constitution

“We will defer to the Court if ever it rules on this issue in the future,” he added.
Calls for people’s initiative came to life after a Social Weather Stations (SWS)
survey showed that three out of four Filipinos want Congress to renew ABS-CBN’s
franchise.

The survey was released Saturday, a day after the House committee on legislative
franchises overwhelmingly rejected the network’s bid to resume broadcast operations.
ABS-CBN’s broadcast operations were ordered shut on May 5 following the
expiration of its legislative franchise, in compliance with the National
Telecommunications Commission’s (NTC) shutdown order.

The NTC order follows President Rodrigo Duterte’s public rants against the television
network which he had repeatedly lambasted for not airing his 2016 presidential
campaign advertisement.

In a speech on Dec. 3, 2019, Duterte said he will see to it that ABS-CBN is out.

Despite Duterte’s statements against the network, Malacañang has repeatedly claimed
its neutrality on the issue.