WHO'S THE GUILTY PARTY IN ABS-CBN CLOSURE?

WHO'S the guilty party in the ABS-CBN closure? Atty. Rodolfo Salalima, the first secretary of the newly created Department of Information Technology, says the cease and desist order issued by the NTC is null and void. It has no force of the law. His paper is quite exhaustive as it discusses the finer points of law about the NTC's C&D order. So who's guilty? Finally, Rudy Salalima could not help but muse how we have become a nation of sadists and masochists amid the developments. Please care to read ...

Excerpts: "Why are we a Nation of sadists and masochists inflicting pain and sufferings against each other and unto ourselves? Why do we unnecessarily create enemies amongst us thereby poisoning our body politic? Why build walls and fences when we can construct human and humane connecting bridges? When we should heal and move as one, particularly now, against and amidst this terrible pandemic."

TO RAGE AGAINST
THE DYING OF THE LIGHT!

ATTY. R.A. SALALIMA

ON MAY 5, 2020, the National Telecommunications Commission (NTC) issued its Cease and Desist Order (CDO) of the same date directing ABS-CBN to cease and desist from its broadcasting operations, a necessary public service, effective on the evening of May 5th, a sorrowful Tuesday. The CDO, however, issued with precipitate haste, is VOID AB INITIO or from the very beginning. This NTC order, because void, is of no legal effect or consequence. THE CDO SIMPLY DOES NOT HAVE THE FORCE OF LAW.

Assuming arguendo that the CDO is correct based on substantive law, the CDO is illegal and void because it was issued without ABS-CBN being heard on the legal issue thereon related to its Congressional Franchise IN VIOLATION OF THAT COMPANY’S CONSTITUTIONAL RIGHT TO PROCEDURAL DUE PROCESS OF LAW. According to the Deputy Commissioner-spokesperson of the NTC, the CDO was issued because of a legal issue raised in regard ABS-CBN Congressional Franchise, particularly its expiration on May 5th.

Thus, the following QUESTIONS: PRIOR TO THE ISSUANCE OF THE CDO ON MAY 5TH, ABS-CBN was operating based on a Certificate of Public Convenience (CPC) or authorization from the NTC. Was there a Petition or Complaint filed with the NTC questioning the continued operation of ABS-CBN predicated on the expiry of its franchise? If the Petition was dated and filed on May 5th with the NTC, then the CDO also dated May 5, 2020 was clearly issued with precipitate haste and thus void given the interval between the FILING of the Petition and the ISSUANCE of the CDO - - both May 5, 2020.

If the Petition was filed before May 5th, or prior the expiration of the ABS-CBN’s franchise on May 5th, then the Petition is PREMATURE IN LAW and thus there was NO CAUSE OF ACTION versus ABS-CBN as yet as at the filing date of the Petition, if any. In consequence, the CDO is likewise void ab initio. The Petition dated PRIOR to May 5, 2020, if any, because premature, should have been dismissed outright.

Was a copy of this Petition, if any, served on ABS-CBN for this public service company to reply thereto and be heard thereon? Was there a Show Cause Order issued by the NTC to ABS-CBN and was there a hearing on this Show Cause Order attended by the real parties-in-interest involved BEFORE the issuance of the CDO. Obviously, the answers to all the above searching questions are all NO given that the whole world, ABS-CBN included, was caught by surprise by the sudden appearance of the CDO dated and on May 5, 2020 ordering the ABS-CBN to stop and desist from its operation effective May 5th also.

In the process of denying ABS-CBN PROCEDURAL due process with supersonic speed, the NTC, in issuing its void CDO likewise seriously violated its own 2006 Rules of Practice and Procedure, particularly Section 4 (Part III, Rule 10) thereof re: Issuance of Show Cause Order and Prior Hearing before Issuance of a Cease and Desist Order.

Judicial Knowledge is different from and not judicial notice in Remedial or Procedural Law. On the former, every judge, even in quasi-judicial cases before the NTC, must decide a case based NOT on what he personally knows but based on issues (of fact and/or law) raised and presented in evidence in a hearing or process where both substantive and procedural due process are observed punctiliously.

As stated, due process is BOTH SUBSTANTIVE (law and fact-based) and PROCEDURAL (right to be informed of and to be heard on charges made and fair trial thereon). Without procedural due process, all decisions of courts and quasi-judicial bodies, though arguably consistent with substantive statutory laws, are void ab initio. (See Ang Tibay vs, CIR [1940]). They are of no force and effect in law. This is true of the NTC’s CDO in question.

GOVERNMENT FRANCHISES OR LICENCES
TO OPERATE PUBLIC SERVICE.

May ABS-CBN continue its operations after the expiration of its Congressional Franchise but while its application for extension thereof (timely filed and pending with the House of Representatives in 2016 yet) is being heard or yet to be heard and has yet to be resolved? THIS IS THE CRUCIAL LEGAL ISSUE OF THE MOMENT.

THE ANSWER: Yes, as a matter of legal right and in the interest of justice and due process… all of which are at the heart of our Constitution which has primacy over the statutory laws of the land.

To begin with, any franchise to operate public service like telecommunications or broadcasting or any business license is a privilege granted by the State. This I grant. BUT once granted and the franchisee infuses investments or resources into the franchise to make it operational, like CAPITAL EXPENSES (CAPEX) for the network infrastructure and OPERATING EXPENSES (OPEX) for the salaries and wages of the workers and employees, the franchise (or its application for extension seasonably filed) becomes a vested constitutional property right which cannot simply be taken away, revoked or set aside without due process of law.

Bases: (1) Section 1, Article III (Bill of Rights) of our Constitution: “No person shall be deprived of life, liberty or property WITHOUT DUE PROCESS OF LAW, nor shall any person be denied EQUAL PROTECTION OF THE LAW.” Moreover, the right to property is the right to acquire, hold, enjoy, possess and manage property, as well as to devote the same to legitimate use. (2) Fact is, in Shauf vs Court of Appeals (1990), the Supreme Court even ruled that the right to earn a living is part of one’s right to life itself. Our Constitution is a Freedom Constitution.

The Bill of Rights was intentionally enshrined in our Constitution for a purpose; it has primacy over statutory laws and the latter cannot rise over and prevail against the former. The Bill of Rights has primacy too over the powers of government which functions only on delegated powers entrusted to it by the sovereign people. (3) See also the Preamble of our Constitution which speaks of “a regime of truth, justice, xxx equality”. And justice is all about basic fairness and due process.; (4) see also the Supreme Court rulings in Ang Tibay vs CIR (1990) and (5) Globe Telecom vs NTC, et al. (2004), all about basic substantive and procedural due process of law.

ABS-CBN’s constitutional right to operate in the interim gains more importance because its operations are clothed with public interest as it is engaged in public service, and this right is intertwined intimately with the expanded digital freedom of expression (Section 4, Bill of Rights) and Article 19 of the 1948 Universal Declaration of Human Rights, thus: “Everyone has the right to freedom of expression; this right includes freedom to hold opinions without interference and TO SEEK, RECEIVE AND IMPART INFORMATION AND IDEAS THROUGH ANY MEDIA REGARDLESS OF FRONTIERS.”

Equally supportive of the above position, the Braid provision is more telling:

“GENERAL PROVISIONS
XXX
SECTION 10. The State SHALL PROVIDE the policy environment for the full development of Filipino capability and THE EMERGENCE OF COMMUNICATION STRUCTURES suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, IN ACCORDANCE WITH A POLICY THAT RESPECTS THE FREEDOM OF SPEECH AND OF THE PRESS.” (Section 10, Article VXI, Phil. Constitution)

Anent the Secretary of Justice’s opinion in support of ABS-CBN on grounds of equity, our Civil Law concept of EQUITY is part of the laws of our land. But more than equity, ABS-CBN’s operations in the interim is a matter of constitutional right, justice and due process as explained above.

In taking the above affirmative position, I am not unmindful of the contrary views of others in support of the Cease and Desist Order of May 5, 2020 of the NTC based on an alleged substantive law (the Radio Control Act No. 3846) which requires a Congressional franchise before a broadcast company may be granted by the NTC a Certificate of Public Convenience or authority to operate, and the Supreme Court ruling in Associated Communications and Wireless Services – United Broadcasting Networks vs NTC (2003). In response, let me be brief:

1. The NTC CDO ruling is VOID AB INITIO because it was issued with precipitate haste IN VIOLATION OF ABS-CBN’s constitutional right to PROCEDURAL due process of law, and, worse, IN VIOLATION OF NTC’s OWN 2006 RULES OF PRACTICE AND PROCEDURE in regard the issuance of Show Cause and Cease and Desist Orders;
2. Our Bill of Rights and our Constitution have primacy over statutory laws like Act No. 3846. Thus, Act No. 3846 cannot prevail as against our Constitution because our Constitution, though silent, is deemed written in every statutory laws of the land. This is basic in Statutory Construction and Constitutional Law;
3. The particularities in and the uniqueness/novelty of ABS-CBN’s factual situation are not identical to those in the case of Associated Communications. Thus, Associated Communications is not applicable to the ABS-CBN’s case. BLIND IDOLATRY TO JUDICIAL PRECEDENTS, AS WHEN THE SALIENT FACTS OBTAINING IN TWO CASES ARE NOT IDENTICAL, MUST NOT BE COUNTENANCED. SEE JUSTICE BENJAMIN M. CARDOZO ON “THE GROWTH OF LAW” IN RE THE FECUNDITY OF OUR CASE LAW AND BLIND ADHERENCE TO PRECEDENTS, TO “CERTAINTIES” THAT ARE ILLUSORY AND SHAM.

THE FAULT IS NOT IN THE STARS
BUT BECAUSE WE ARE UNDERLINGS

Why are we a Nation of sadists and masochists inflicting pain and sufferings against each other and unto ourselves? Why do we unnecessarily create enemies amongst us thereby poisoning our body politic? Why build walls and fences when we can construct human and humane connecting bridges? When we should heal and move as one, particularly now, against and amidst this terrible pandemic.

NTC’s cardinal sin is its issuance of the void ab initio CDO causing the serious quagmire that we are currently in. It must be held accountable for its sin. But let us not make a scapegoat out of NTC for our current problem because NTC is the wrong agency put to extreme pressure to solve a legal issue - - a solution which primarily and exclusively belongs to another agency of government.

The ultimate responsibility and fault lie on Congress, particularly the Leadership of the House of Representatives, constitutionally vested with THE exclusive plenary jurisdiction and power to hear and grant applications for franchises or extensions thereof, for temporizing on ABS-CBN’s application for the extension of its franchise seasonably filed in 2016 yet. The simple, easy and quick solution - - a plain, speedy and adequate remedy - - to the legal issue was and is within the exclusive and plenary power of a supposedly independent Congress, but the leadership of the House failed our country and people. And that great power of the House/Congress, a CONSTITUTIONAL DUTY more than a right, to hear and grant a franchise sans serious and valid obstacle carries with it the lesser ancillary power to grant a temporary relief in the form of a PROVISIONAL Congressional franchise or authorization IN THE INTERIM pending the hearing and grant of the regular Congressional franchise with a term of 25 years, if congress is so minded to conduct a meticulous and punctilious hearing on the merit. ABS-CBN filed its application for the extension of its franchise so seasonably. Nothing happened to this application todate. So where is justice?

For Congressional non-action, public service and freedom of expression were thus sacrificed via a void legal technicality - - the void ab initio Cease and Desist Order of the NTC dated May 5 2020. Non-action is the worst form of delay. Because it leaves the aggrieved without clear and speedy recourse.

So unfortunate and sad, particularly in these dark hellish nights of COVID…

AND HERE I RAGE AGAINST THE DYING OF THE LIGHT!

P.S.: I took the legal position above stated in the best light that God had given me to see the TRUTH, with charity and kindness for and to all, and with malice towards no one. Against strict law and legal technicality, let us think and act, always, not by the letter of the law that killeth but by the spirit that giveth life to the law. Our Constitution is not a strict, passive, cold and indifferent law. It is a living and dynamic organism that must respond and adjust to the needs and in the service of every Filipino, our people, and our one and only Nation. God bless us all!

(Please share/pass forward. Thank you.)

- Atty. R.A. Salalima
May 10, 2020