Legal weapon that ousted top judge now used against critical media

By Vann Marlo M. Villegas Reporter

PRESIDENT Rodrigo R. Duterte’s chief government lawyer is seeking to shutter a media giant critical of the tough-talking leader by using a legal weapon he once used to remove a chief justice two years ago.

And he might just get what he wants if he musters enough votes from a high tribunal dominated by Duterte appointees, according to a legal expert.

Solicitor General Jose C. Calida has asked the Supreme Court to revoke ABS-CBN Corp’s franchise, accusing it of “highly abusive practices.”

Called a “quo warranto,” the petition against ABS-CBN is a government action against a person who usurps, intrudes into, or unlawfully holds a public office, position or franchise.

It can also apply to a corporation in the Philippines that has not been legally incorporated.

An outspoken critic of Mr. Duterte, Maria Lourdes Sereno was removed by her fellow magistrates in May 2018 based on Mr. Calida’s quo warranto lawsuit, which accused her of having failed to disclose information about her financial earnings when she was appointed in 2010.

“Quo warranto means what is your warrant? What is your authority? It’s questioning someone who does something without authority,” Antonio G.M. La Viña, a law professor at the University of the Philippines, said by telephone.

Under the law, the government’s top lawyer can file the lawsuit when ordered by the President.

A person may file a quo warranto case before the Supreme Court, Court of Appeals or a trial court when they are entitled to the public office or position that had been usurped.

That same legal weapon had been used once against Mr. Duterte himself, when a suspended lawyer sought to nullify his presidential win in 2016. The Supreme Court rejected the lawsuit in January last year on a technicality, as it ruled the plaintiff did not have the legal standing to sue and the action had lapsed.

Eugenio H. Villareal, a law professor at the Ateneo de Manila University, said the lawsuit is very rarely used against a company. “You have to think twice, thrice before you file it,” he said in an interview.

The broadcaster allegedly used an “elaborately crafted corporate veil” to allow foreign investors to take part in its ownership.

The company allegedly violated the foreign ownership restriction when it issued Philippine depositary receipts to foreigners. The financial instruments allow foreign funds to buy into the company, allowing it to raise funds globally.

ABS-CBN also went beyond the scope of its legislative franchise by “broadcasting for a fee,” Mr. Calida said. The company allegedly launched and operated a pay-per-view channel in ABS-CBN TV Plus, the KBO Channel, without regulatory approval.

Unit ABS-CBN Convergence, Inc. had also resorted to an “ingenious corporate layering scheme” in order to transfer its franchise without congressional approval, he said.

It also failed to list its shares on the Philippine Stock Exchange within five years, which was a condition of its franchise, Mr. Calida said.

The media network, which Mr. Duterte accused in 2017 of swindling after it refused to run political ads he had paid for during the 2016 presidential campaign, has denied the allegations.

“I will not let it pass,” the President, who has also criticized the broadcaster for airing news stories about his alleged secret bank accounts, said in 2018, referring to its application for a franchise extension. “Your franchise will end. You know why? Because you are thieves.”

Mr. Calida justified the lawsuit by citing 2009 jurisprudence that said that a quo warranto is “a more appropriate, more narrowly tailored and least restrictive remedy that is afforded by law.”

The plaintiff had asked the National Telecommunications Commission to cancel the certificates of public convenience and other licenses of Consolidated Broadcasting System, Inc. and People’s Broadcasting Service, Inc., which held legislative franchises.

Mr. Calida also argued the tribunal should hear his lawsuit because it was of “transcendental importance,” given that ABS-CBN is the country’s largest media group.

Mr. Duterte, who has openly harbored a grudge against the broadcaster, has denied having a hand in the solicitor general’s quo warranto suits against Ms. Sereno and the media giant.

Mr. La Viña said the chief government lawyer might have gone straight to the Supreme Court because “you only have to get the right number of votes.”

Of the 15-member tribunal, 11 are Duterte appointees. Mr. Duterte promoted another magistrate appointed by then President Gloria Macapagal-Arroyo to chief justice.

The UP professor said the high court is not the right venue for a quo warranto lawsuit.

“The court does not try facts, we always say that,” Mr. La Viña said. “And there are factual issues that have to be resolved in the ABS-CBN case.”

“The proper venue is the Securities and Exchange Commission and National Telecommunications Commission,” he said.

“Not even the lower courts. From there the losing party can then file an appeal before the Court of Appeals, before you go to the Supreme Court,” he added.