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‘Quo warranto vs ABS-CBN lethal’

Mario J. Mallari

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The quo warranto case filed by the Office of the Solicitor General (OSG) before the Supreme Court (SC) against television giant ABS-CBN could be “lethal” even to other media outlets having Philippine Depository Receipts (PDR) owned by foreigners.

During the weekly “Straight Talk” with Daily Tribune, former Senate President Juan Ponce-Enrile stressed the quo warranto petition filed by Solicitor General Jose Calida before the SC is a test case.

“If the government wins its case before the Supreme Court, all media outlets with the same PDR are disqualified to continue operating their business,” Enrile said.

“That’s how lethal that case is… that’s only a test case (petition versus ABS-CBN). A decision of the SC will become the law of the case, a precedent,” he pointed out.

Among the arguments presented by Calida in his 63-page petition filed last 10 February was ABS-CBN’s use of PDR, particularly the network’s holding firm ABS-CBN Holdings Corp.

Calida argued that the use of PDR is not only prohibited by the Constitution but “criminal liability is also imposed on those who violate foreign equity restrictions and evade nationalization laws of the Philippines through various modes of proxy arrangement, making it appear as legal, but the entirety of the arrangement is to accomplish a transaction not allowed under Philippine laws.”

Enrile, who is a lawyer and a former justice secretary, supported Calida’s stand that the use of PDR by ABS-CBN is unlawful, stressing the constitutional prohibition for foreigners to own any stake in media companies.

“It is a violation of the Constitution. Under the Constitution, all media outlets must be wholly, fully owned by Filipinos,” Enrile said.

Enrile also junked arguments allowing PDR to ABS-CBN since it has no voting rights in the corporation.

“If they are saying that PDR are okay because it has no voting rights, why did not make it as preferred shares? What is the difference with preferred shares of a corporation that have no voting rights also but it is a badge of ownership,” Enrile explained.

Enrile said that the case against ABS-CBN is not considered an issue of press freedom — stressing the constitutional prohibition on foreign ownership of media outlets.

“The press freedom is provided in the Constitution with prohibitions…foreign share in a media outlet is a constitutional prohibition. That’s a limitation to press freedom,” he said.

For the OSG, the quo warranto petition filed against ABS-CBN is not a move to restrain press freedom, but an action “to correct a public wrong” brought about by the violations committed by the network.

According to ABS-CBN’s reply submitted to the Supreme Court, the allegations of the government’s top lawyer were unfounded.

Among the many points raised by the media company is the “chilling effect” that the petition will cause once it is granted. The revocation of the media company’s franchise will “amount to a curtailment of the freedom of speech and of the press,” according to ABS-CBN.

Meanwhile, the Integrated Bar of the Philippines (IBP) on Friday cautioned the government against granting ABS-CBN a provisional permit to enable it to continue operating even if its franchise expires on 4 May.

Domingo Egon Cayosa, national president of IBP, said that if both houses of Congress can have a timely consensus, it may be better for them to decide whether or not to pass a franchise law in accordance with the Constitution rather than a ‘stop-gap’ joint resolution authorizing National Telecommunications Commission (NTC) to administratively issue a provisional authority.

Cayosa said that such provisional permit theoretically can be questioned by interested parties in another quo warranto case before the courts.

The IBP warning was a similarity with the opinions of retired Chief Justice Reynato Puno and retired SC justice Angelina Sandoval-Gutierrez, who both said that an NTC permit to ABS-CBN without a franchise will run counter to a 2003 ruling issued by the high tribunal.

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