MAY THE National Telecommunications Commission grant ABS-CBN provisional authority to operate in the meantime that its franchise has expired, and its renewal is pending consideration by Congress?
This would be easy pickings for a law graduate, right? A law that pre-dates the second world war (Act No. 3846) provides that a franchise from Congress is required before any person may operate a radio broadcasting station.
The requirement of a congressional franchise was later on held to extend to the operation of a television network under the provisions of Presidential Decree No. 576-A – a law passed by Marcos when he hogged both executive and legislative powers under the Martial Law regime.
There has never been a subsequent law which implies an intent to dispense with the franchise requirement in the broadcast industry.
Not even the Department of Justice may persuade otherwise.
In 2003, the Supreme Court, speaking through then Justice Reynato Puno, brushed aside the argument that the NTC is bound by the opinion of the DOJ that said, as it appears to be saying now, that the NTC may in the meanwhile grant authority despite the absence of a subsisting franchise granted by Congress.
According to the Supreme Court, for as long as there is a law which requires a franchise for the operation of radio and television stations, that law must be followed until subsequently repealed.
That is in consistent affirmation of dura lex sed lex – a Roman tradition intended to maintain societal order. Our courts are wont to hang on to law and precedent to promote balance in all sectors, and to contain experimentation and adventurism in the other branches of government.
But while it affirmed the power of Congress over the NTC, the Supreme Court in that famed ACWS case also echoed a rising sentiment among those desirous of efficient governance. Congress should be delegating some of its powers to administrative agencies. This would ultimately dispense with the requirement of a congressional franchise.
Students of administrative law are familiar with the teaching that certain important agencies of government are meant to address “the growing complexity of modern life, the multiplication of the subjects of governmental regulation, and the increased difficulty of administering the laws.”
A franchise is essentially a privilege granted by the state through congress. But even our courts have acknowledged that there is a growing tendency towards the surrender of powers by the legislature so that a franchise may be derived indirectly from the state through an administrative agency.
Believe it or not, but there was a time when ice plants had to go through Congress to be able to operate.
Truly, there is wisdom in unburdening Congress of the nitty-gritty of private bills, often to the detriment of measures that require double the attention.
Conversely, this highlights how Congress has jealously guarded its hegemony over broadcast franchises. It is not difficult to see why.
Before the advent of fake news and hate speech in social media, television was the singular power that could make or unmake a politician’s career.
If media as a collective is the light that illumines wrongdoing in a democracy, television is the magnifier that can imprint dramatic impressions of a public official’s defeat in the aftermath of a scathing expose. Corruption and official misconduct can best thrive in dark corners, not in the glare of a television camera.
The NTC’s actions are perhaps defensible from a completely legal vantage point. The courts are likely to sustain them, dura lex sed lex, procedural and due process objections notwithstanding.
But the ABS-CBN debacle has apprised us ordinary citizens of how the levers of power may be manipulated so that politicians can defeat a voice so loud and so essential in a democratic way of life.
We are witness to how Congress, by deliberate inaction, may align with the executive department in achieving a desired result that is easy to advocate before the courts.
Must this alarm us?
Since 2017, the Philippines has ranked consistently low in the rule of law index, the 13th among fifteen countries in east Asia and the Pacific.
In a regime of law, government powers must be subject to nongovernmental checks such as those exercised by the media and civil rights groups. Freedom of the press is a primordial value.
As advanced by the World Justice Project, effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices. The rule of law underpins development, accountable government, and respect for fundamental rights.
The rule of law has been viewed as the domain of lawyers and judges. But issues of safety, rights, justice, and governance affect us all. Everyone, indeed, is a stakeholder in the rule of law./PN
