WHAT ARE THE AVAILABLE REMEDIES FOR ABS-CBN, IF ANY?
Last Friday, 10 July 2020, the House of Representatives Committee on Legislative Franchise concluded its public hearings on the application of the country’s leading network ABS-CBN for another 25-year franchise. Voting 70-11 with 1 abstention and 2 inhibitions, the Committee passed a resolution “laying on the table” the various House Bills giving ABS-CBN another lease of broadcast rights. Otherwise stated, as clarified by the members of the House Committee, these bills were effectively “killed” at least in the 18th Congress. The “yes” votes adopting the Technical Working Group report denied the network’s franchise application. What then are the remedies available for the network, if any? Can it file another Supreme Court case, a Petition for Certiorari under Rule 65 alleging grave abuse of discretion amounting to lack or in excess of its jurisdiction?
Unfortunately for the network, it may not question the wisdom of the House Committee which denied its franchise application. This falls under the so-called “political question” which the third branch of Government, the Judiciary, cannot dwell upon. Distinguished from a “justiciable controversy”, the United States Supreme Court in the case of Baker vs. Carr, 369 U.S. 186 (1962), outlined the six (6) characteristics apparent in an issue or controversy characterized as a “political question”: 1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department; 2) a lack of judicially discoverable and manageable standards for resolving it; 3) impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; 4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; 5) an unusual need for unquestioning adherence to a political decision already made; or 6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
The decision to grant a franchise to a network was committed by the framers of the 1987 Philippine Constitution to the Legislature or Congress. Section 11, Article XII of the 1987 provides that “neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good requires.” (Italics supplied) Section 24, Article VI of the 1987 Philippine Constitution also provides that private bills, which includes an application for a franchise, shall originate exclusively in the House of Representatives subject to proposal and concurrence with amendments by the Senate. The decision to grant or deny the application for a franchise may also amount to a policy determination which is clearly a non-judicial function. The courts will not be in a position to determine whether it was right or wrong to deny ABS-CBN a franchise absent discoverable and manageable standards. Finally, to allow the Judiciary to question the wisdom of its co-equal branch, the Legislative Department, would result to a potentially embarrassing scenario of having two conflicting findings and rulings by different branches of government.
Some pundits suggest that a people’s initiative may be explored to grant ABS-CBN a legislative franchise, which is essentially a national law. Can it be legally done? Yes. Section 32, Article VI of the 1987 Philippine Constitution provides that “Congress shall, as early as possible, 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 or law or part thereof passed by the Congress or local legislative body after the registration of a petition thereof signed by at least ten per centum of the total number of registered voters, or which every legislative district must be represented by at least three per centum of the registered voters thereof.”
What is the enabling law of this constitutional provision? Republic Act No. 6735, otherwise known as “The Initiative and Referendum Act”, enacted by the 8th Congress on 04 August 1989. Section 5 (a) thereof provides: “To exercise the power of initiative or referendum, at least ten per centum (10%) of the total number of registered voters, of which every legislative district is represented by at least three per centum (3%) of the registered voters thereof, shall sign a petition for the purpose and register the same with the Commission (on Elections)”. Will it be a wise decision for ABS-CBN to do so? This author opines in the affirmative. First, it will give them a venue to present their case to the grassroots since not all were able to watch the hearings in the House of Representatives. Second, it will give them opportunity to win more followers and supporters. Third, it will give jobs to its employees who may be assigned to various municipalities to explain their case and campaign for support. An unsolicited advice to ABS-CBN, however, is to ensure that all procedural and technical requirements should be strictly complied to avoid the same fate as that of the previous people’s initiatives as discussed in the cases of Santiago vs. Commission on Elections, G.R. No. 127325 (1997), and Lambino vs. Commission on Elections, G.R. No. 174153 (2006), both of which attempted to introduce amendments to the 1987 Philippine Constitution.
Finally, another remedy for ABS-CBN is to wait until after the 2022 Elections. The said national and local elections may result to a different political landscape and a non-hostile (not necessarily friendly) administration. This may enable the network to lodge anew an application for a legislative franchise before the 19th Congress. If it was able to go back on air after the Marcos Dictatorship, there is no reason why it cannot bounce back after the Duterte Regime.