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With Due Respect

Quo warranto on ABS-CBN (Part 2: Answers)

I felicitate those who answered the questions I raised last Sunday. Since my days as a professor of law up to now, I have never believed in spoon-feeding. In my humble opinion, the best way to learn is to think solutions for ourselves in given scenarios. Now, for my modest answers.

Quo warranto (QW), per the Rules of Court, is an action brought against a “person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise.” The action or suit assumes that from the very beginning the respondent had no right to hold or exercise the subject public office, position or franchise.

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To explain this point, let me turn to a familiar case, Republic v. Sereno (May 11, 2018), which held that QW is proper when the challenged “act or omission was committed prior to or at the time of the appointment or election relating to an official’s qualifications to hold office as to render such appointment or election invalid… Acts or omissions… committed during the incumbency of a validly appointed and/or validly elected official cannot be the subject of a quo warranto proceeding…”This is why the respondent was ousted via QW because, according to the Court, she was from the outset ineligible to hold her position since she did not possess the constitutionally-required qualification of integrity due to her failure to file some of her SALNs prior to her appointment to the high court.

As a result, the Court dethroned her as the de jure (or lawful) “First Female and 24th Chief Justice.” That honor was bestowed on Teresita J. Leonardo-De Castro who was appointed CJ after the respondent was ousted.

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(I maintain my opinion published a year ago that impeachment, not QW, is the proper remedy to remove impeachable officials like Supreme Court (SC) justices. But I agree with the dictum that for QW to apply, the invalidity must be pre-existing.)

Though the Sereno case involved a public office or position, not a franchise, the principle is the same: The defects must pre-exist; they must have been extant prior to or simultaneous with the appointment or election or grant of the franchise, thereby making the holding or the exercise thereof void ab initio. In the present case, however, the acts or omissions complained of (like the KBO, the PDRs, etc.) were committed after the respondents’ franchises were granted by validly enacted laws, not “prior to or simultaneous with” the grant. Hence, per the Sereno dictum, said acts or omissions cannot be the subjects of QW.Moreover, the many issues of facts mentioned in my piece last Sunday must first be determined before the questions of law raised by the petitions can be resolved. Gio-Samar v. DOTC (March 12, 2019) unequivocally held that “when a question before the Court involves a determination of a factual issue indispensable to the resolution of the legal issue, the Court will refuse to resolve the question regardless of the allegation… of compelling reasons…”

At the very least, the petitions should be remanded to the Court of Appeals (CA) to determine these factual questions before the SC can act on the legal issues.

I also believe the subject PDRs did not violate the constitutional provision limiting the “ownership and management of mass media” to Filipinos. The PDRs did not grant ownership or management rights to foreigners. Mainly, they conferred only the rights (1) to receive dividends of the underlying shares (less administrative expenses) and (2) to convert them to shares of stock provided those who convert are Filipinos. The 100-percent Filipino company that owns the underlying shares unqualifiedly controls and votes the shares.In any event, those aggrieved by any alleged violations may file complaints in the administrative agencies that have regulatory jurisdiction over such allegations, like the National Telecommunications Commission and the Securities and Exchange Commission. Their decisions are appealable to the CA and then to the SC.

And assuming the violations are duly proven in these agencies, the penalty is not a forfeiture of the franchise but may only be a fine, or a refund of the fees paid, and/or a halt to the service complained of.

At bottom, on Congress and on the President (who may approve, veto or allow the franchise bill to lapse into law) rests the fate of ABS-CBN and ABS-CBN Convergence, not on the Supreme Court.

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TAGS: ABS-CBN franchise, artemio v. panganiban, quo warranto petition, Supreme Court, With Due Respect
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