FORMER DUTERTE CABINET MEMBER CALLS ABS-CBN SHUTDOWN VOID

Former Information and Communications Secretary Rodolfo Salalima has tagged the May 5, 2020 cease-and-desist order (CDO) issued by the National Telecommunications Commission (NTC) against ABS-CBN as “void ab initio.”

Salalima, who quit his post in the Duterte Cabinet, said in an essay “To Rage Against the Dying of Light!” posted on the internet on May 10 that “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.”

A lawyer, Salalima maintained that while the NTC may be correct in issuing the CDO based on substantive law, it is still illegal and void for it was issued without affording ABS-CBN the chance to clarify issues on its franchise in a formal hearing.

This, he argued, is a violation of the broadcast network’s CONSTITUTIONAL RIGHT TO PROCEDURAL DUE PROCESS OF LAW.

As it is, he noted, the deputy commissioner and spokesman of the NTC harked back to the expiration of the congressional franchise to justify the issuance of the CDO.

This contention raises legal questions as well, Salalima explained, the first of which concerns the continued operation of the network based on a Certificate of Public Convenience (CPC) issued by 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 were 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,” Salalima pointed out.

“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,” he added.

The fatal flaw of the NTC was that it failed to respect both substantive and procedural due process by acting without hearing, by shutting down ABS-CBN and shredding the Constitution, which commands judicial bodies and quasi-judicial agencies to respect the rights of everyone.

NTC is mandated by the Constitution to decide on cases NOT on the basis of what it knows but on the basis of issues of fact or of law, with the parties arguing in a fair hearing.

“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,” Salalima stressed.

The former Duterte Cabinet member also argued that ABS-CBN can continue its operations after the expiration of its franchise and while its application for extension thereof, filed before the House of Representatives in 2016 yet, is being heard or yet to be heard and has yet to be resolved.

Salalima insisted that such operation is 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,” he said.

Salalima insisted there are five bases for this position.

First is 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.

Second is the decision in Shauf vs Court of Appeals (1990), when the Supreme Court (SC) 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.

Third is 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.

Fourth is the SC ruling in Ang Tibay vs CIR (1990) and fifth is the verdict in Globe Telecom vs NTC, et al. (2004), all of which are 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,’” Salalima argued.

He noted that the Braid provision is more telling:

“GENERAL PROVISIONS

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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,” Salalima pointed out. #ABSCBNfranchise