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Freedom vs privilege

“But can ABS-CBN invoke prior restraint? I am sure the television network will do so, but will such a plea pass the test of judicial scrutiny?

Harry Roque



Earlier this week, I made the fearless prediction that the High Court will not act on the petition for quo warranto filed by the Solicitor General against ABS-CBN. I did so on two grounds: because the petition seeks to cancel the remaining franchise of the television network for the next two months, it is in the nature of prior restraint and is hence presumed unconstitutional. No less than a clear and present danger can suffice to overcome the very heavy presumption of unconstitutionality. I also said that given the doctrine of mootness, the court need not decide on the dispute. This is even if the issue of the legality of the pay-per-view scheme may be a novel issue for the Court to resolve.

The interesting issue is whether the rise of a technological development, the pay-per-view technology, inexistent at the time of the grant of the franchise, may be deemed a violation of the same. Here, the Solicitor General rightfully pointed out that the National Telecommunications Commission (NTC) already warned the television network that it has not issued any implementing rules on the pay-per-view scheme.

So, is the advent and use of technology not covered by the original franchise a violation of the same or should we apply the principle of ejusdem generis, literally, that pay-per-view is of the same class as free broadcast covered by the franchise?

And while not etched in stone, I also opined that given that the justiciability of the franchise might be mooted in two months, the Court may exercise judicial prudence and allow the elected members of the Legislative branch to discharge its function to grant a renewal of the franchise or not.

Assuming, therefore, my predictions prove to be true, what happens to ABS-CBN on 30 March of this year?

Both Senate President Tito Sotto and House Speaker Allan Peter Cayetano have stated that the NTC will issue a provisional authority to operate until the 18th Congress adjourns.

While I agree that the NTC may issue such a provisional authority, I beg to differ that this is ministerial on its part. Instead, I submit that it is discretionary on the NTC whether or not to issue such an authority, since the use of the airwaves owned by the state is never in the nature of a right but a mere privilege. If it finds the grounds relied upon by the Solicitor General in its petition to be meritorious, no writ of mandamus from our courts can compel the NTC to issue a provisional authority.

But the bigger issue is, assuming that the grounds of the Solicitor General are meritorious, will Congress issue a renewed franchise? My guess is as good as yours: of course not. Why would an entity that violated its earlier franchise be entitled to a renewal of the same? He who seeks a remedy must do so with clean hands, as the saying goes.

So, the issue now becomes: will the denial by Congress to grant ABS-CBN a renewed franchise also in the nature of prior restraint and hence, presumed to be unconstitutional?

Here the dilemma is, even if it is, which is not yet conceded, I fail to see any remedy for the television network to compel Congress to grant it the renewal that it seeks. This is clearly not a ministerial task and as repeatedly held by our court, the writ of mandamus, to compel the doing of an act, will lie only on ministerial tasks.

But can ABS-CBN invoke prior restraint? I am sure the television network will do so, but will such a plea pass the test of judicial scrutiny?

I am less clear on this issue. The OSG will allege that since a broadcast company requires a franchise before it can engage in the business, then a franchise is a requirement sine qua non to the exercise of freedom of the press. ABS-CBN, on the other hand, will argue that the surrounding circumstances behind the franchise denial points to an overall and systematic pattern to shut down a critical broadcast outfit and hence, in the nature of prior restraint.

How will the court rule? It is all about whether or not the exercise of freedom of the press may be made to depend on the acquisition of a privilege, a franchise, where one is required; or whether the Bill of Rights is the ultimate franchise for broadcast press media. Let’s see how our Supreme Court will rule on this issue of transcendental importance.

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