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MANILA – The closure order of the National Telecommunications Commission against ABS-CBN has no force of law, as it was void from the beginning, a former Duterte administration official said Sunday night.
In a Facebook post, former secretary of the Department of Information and Communications Technology (DICT), Rodolfo Salalima, said that the NTC violated ABS-CBN’s constitutional right to due process and the NTC’s own rules when it did not give the media giant the opportunity to be notified and heard about a complaint against its continued broadcast.
Salalima noted that ABS-CBN was not given a copy of any petition, nor was a just cause order issued, nor was a hearing held on the alleged complaint against the media network.
He even asked if there were any requests or complaints.
“Was there a Petition or Complaint filed with the NTC questioning ABS-CBN’s continuing operation based on the expiration of its franchise? If the Petition was dated and filed on May 5 with the NTC, then the CDO also dated 5 May 2020 was issued clearly with hasty precipitation and therefore void given the interval between the Filing of the Petition and the ISSUE of the CDO, both on May 5, 2020, “he said.
“If the Petition was filed before May 5, or before the expiration of the ABS-CBN franchise on May 5, then the Petition is PREMATURE IN LAW and, therefore, THERE IS NO CAUSE OF ACTION against ABS -CBN until the filing date of the Petition, if applicable. Consequently, the CDO is also void ab initio. The Petition dated BEFORE 5 May 2020, if any, because premature, should have been completely discarded ” he explained.
The last day of the ABS-CBN Corporation franchise fell on May 4, a day before the NTC issued the cease and desist order.
Salalima said the NTC denied ABS-CBN due process “with supersonic speed,” in violation of the Constitution. Due process of law refers to the right to be informed and to be heard about the charges made and to submit to a fair trial, while substantive due process is based on law and facts.
Both are guaranteed by the Bill of Rights that prohibits the government from depriving a person of life, liberty, or property without due process of law.
“Without due process, all court and quasi-judicial body decisions, while possibly consistent with substantive statutory laws, are void ab initio. (See Ang Tibay vs, CIR [1940]) They have no force or effect in the law. This is true for the NTC CDO in question, “he explained.
The Ang Tibay case that Salalima cited is a historical case of due process in administrative procedures that requires the following:
right to a hearing
The court must consider the evidence presented by a party
-decision must be based
-There must be substantial evidence to support the findings
-the decision must be made based on the evidence presented during the hearing or contained in the record and disclosed to the parties
The court must act for its own and independent consideration of the law and the facts of the dispute.
-the decision must be made so that all the parties can know the various issues involved and the reasons for the decision
Since the NTC did not hold a hearing on the ABS-CBN case, Salalima emphasized that each judge, even in quasi-judicial cases before the NTC, must decide not based on what he knows personally, but on the issues raised and presented as evidence during the hearing. or any other process.
He also said that the NTC violated its own rules of procedure because under section 4 (Part III, Rule 10) of its 2006 Rules of Practice and Procedure, a just cause order is needed to inform part of the details of the NTC investigation prior to a cease and desist order may be issued.
ABS-CBN MAY CONTINUE WITH AIR
Salalima, the first DICT secretary under Duterte’s administration, also said that ABS-CBN even has the legal right to continue operating despite the expiration of its franchise.
He said that this is based on a constitutional right, not only on the equity invoked by the Secretary of Justice Menardo Guevarra, and “in the interest of justice and due process.”
Salalima said that while a franchise is a privilege granted by the State, there are situations in which it becomes an acquired right.
“But once granted and the franchisee infuses investments or resources in the franchise to make it operational, such as capital expenditures (CAPEX) for the network infrastructure and operating expenses (OPEX) for the wages and salaries of workers and employees, the franchise (or “your request for extension filed on a seasonal basis) becomes a vested constitutional property right that cannot be removed, revoked, or set aside without due process of law,” he argued.
In addition to the Bill of Rights, Salalima cited the 1990 Supreme Court case of Shauf v. Court of Appeals that ruled that “the right to earn a living is part of the right to life itself”.
“ABS-CBN’s constitutional right to operate in the meantime becomes more important because its operations are vested in the public interest as it is dedicated to public service, and this right is closely related to expanded digital freedom of expression (Section 4, Declaration of Rights) and Article 19 of the Universal Declaration of Human Rights of 1948, therefore: “Everyone has the right to freedom of expression; This right includes the freedom to hold opinions without interference and to seek, receive and transmit information and ideas through any medium, regardless of borders. “
ABS-CBN CASE DIFFERENT
Salalima also differentiated the ABS-CBN case from that of Associated Communications and Wireless Services, which was cited by Attorney General José Cálida in his letter to the NTC justifying the issuance of a cease and desist order.
The Supreme Court, in that case, overturned a Justice Department opinion that allowed a transmission company to operate without a legislative franchise.
But Salalima said the case does not apply to ABS-CBN.
“The particularities and uniqueness / novelty of the factual situation of ABS-CBN are not identical to those of the Associated Communications case. Idolatry blinds judicial precedents, as when the relevant facts obtained in two cases are not identical They should not be endorsed, “he said.
As Guevarra previously noted, the company at ACWS was never previously granted a franchise, unlike ABS-CBN, which received a franchise, operated for decades, and is undergoing renovation, but because the company was not at fault. , Congress did not act on Franchise Renewal Bills.
BLAME CONGRESS, NO NTC
Despite the NTC’s failure to hold him accountable, Salalima said the NTC should not become the scapegoat, as it is the wrong agency to exert extreme pressure.
“Ultimate responsibility and blame rests with Congress, particularly the House of Representatives Leadership, constitutionally vested with exclusive plenary jurisdiction and the power to listen to and grant franchise requests or extensions thereof, to time the request for ABS-CBN for the extension of its franchise was reasonably presented in 2016 yet, “he said.
Salalima assumed the leadership of the Chamber for having “failed our country and our people”, saying that it is the Chamber / Congress that has the constitutional duty to listen and grant a franchise and that it also has the power to grant a provisional congressional franchise or authorization.
“ABS-CBN submitted its request for the extension of its franchise so reasonably. Nothing has happened to this request to date. So where is the justice?” He asked.
“For the non-action of Congress, public service and freedom of expression were sacrificed through a null legal technicality – the null order ab initio cease and desist of the NTC of May 5, 2020. Non-action is the worst form of delay. Because it leaves the aggrieved without a clear and quick recourse. So unfortunate and sad, particularly in these dark infernal nights of COVID … And here I am enraged against the death of the light, “he added.
Salalima resigned his cabinet post in September 2017 due to personal and work reasons, including conflict of interest according to then-presidential spokesman Ernesto Abella.
Salalima, a former classmate of Duterte at the San Beda Law School, served as a former chief legal adviser and chief adviser to one of the leading telecommunications firms in the country, as well as former head of the Chamber of Telecommunications Operators from the Philippines and member of the executive committee of the National ICT Advisory Council.
“Why are we a nation of sadists and masochists who inflict pain and suffering on each other and against ourselves? Why do we unnecessarily create enemies among ourselves thus poisoning our body politic? Why build walls and fences when we can build bridges of human and human connection? When should we heal and move as one, particularly now, against and in the midst of this terrible pandemic, “he said in his post.
He urged the Philippine government to act “not by the letter of the law that kills but by the spirit that gives life to the law.”
“Our Constitution is not a strict, passive, cold and indifferent law. It is a living and dynamic body that must respond and adapt to the needs and service of each Filipino, our people and our only nation.” said.
ABS-CBN Corp. has filed a petition with the Supreme Court challenging the NTC cease and desist order while requesting a temporary restraining order.
He is expected to be drawn to an associate judge who will take over the case on Monday.
