The long goodbye

The legislative calendar has Congress adjourning on March 14, 2020. Session will resume around 50 days later, on May 4, 2020. By then, the expiration of ABS-CBN Corporation’s Congressional Franchise to operate TV and radio broadcasting stations in the Philippines through microwave, satellite or whatever means including the use of new technologies in television and radio systems may have become fait accompli. Their  franchise was last renewed in March 30, 1995. The term was for 25 years. Thus, their D-Day for another renewal is March 30, 2020. 

ABS-CBN lays the strongest claim to being the country’s leading media and entertainment company, offering services across a wide array of platforms, including digital. Its VHF Television network, using Channel 2 in Metro Manila, has a penetration of 97 percent of all TV owning households. Radio, cable, digital, film, publishing, etc., all these are dominated by ABS-CBN in terms of technology, production and the content that it creates on its own. The company’s reach is global. 

Its multi awarded news and public affairs division programming is an intrinsic part of Filipinos’ daily reality. Whatever we’re into during prime time, it’s still gospel to supply our inner citizen with quick fixes from TV Patrol, Bandila or their cable news channel, ANC (along with GMA, TV5, CNN, PTV4, EBC and the other equally substantial network and cable channels). Indubitably, if ABS-CBN should go off the air in 38 days, plenty will feel unmoored.

In these 38 days, surely uncertainty. The House franchise committee refusing to even schedule a hearing; the Senate public services committee with its own hearing on Monday even if franchises are constitutionally obliged to originate in the House. It’s not just procedural minefields to negotiate, there are the core value issues of freedom of speech and the inevitable separation of powers hurdle with Solicitor General Jose Calida’s Quo Warranto petition insinuating itself into the fray, notwithstanding that the matter is already before Congress. The soap opera has left ABS-CBN’s portals and transferred to the Batasan. Talk about life imitating art. 

Best case, it operates until end of the Session during which the franchise renewal was filed. This means June of 2020 or even end of the 18th Congress which takes it to June 2022. Bad case scenario, complete stop by March 30, 2020. But this is not the worst case. After all, ABS-CBN is not prevented from continuing to apply for a franchise. The worst is outright denial of franchise plus to be Quo Warrantoed out. And, there are even indications that the company’s operations will also be questioned on trust and competition grounds given the vertical integration of ABS-CBN’s content and exhibition/publication venues.

VFA Redux. Many were happy to see veteran Senators Francisco “Kit” Tatad and Rodolfo “Pong” Biazon as resource persons in the Senate foreign affairs committee hearing on the Senate’s planned Petition for Declaratory Relief. The two were integral to the debates on the ratification of the Visiting Forces Agreement in 1999. 

As expected, the Department of Foreign Affairs insists on its reading that the President is empowered to withdraw from treaties/international agreements even without Senatorial concurrence. We’re sure the Senators didn’t stage the hearing to try to change minds. Its no one’s fault that the Constitution is opaque on the Senate’s role in treaty breaking in contrast to constitutional clarity on their role in treaty making.  

We delight in seeing the Senate proactive in reclaiming lost ground. Its no good for the institution to lose the power by default which is what would happen if they keep their peace. The Executive may claim the power in the first instance. This is really the image of treaty making that we remember. Negotiation and diplomacy. Even in the constitutional design, the treaty power appears in Article VII on the Executive. 

The debates in the Senate for concurrence aren’t as memorable. They take place after the fact and because they appear to be no different from the other forensic competitions in the hall (I would have used the adjective “great” but, alas, there has been a seismic shift now from the Senate to the House as venue of worthier speech and debate experiences). Nonetheless, Senate concurrence, though a condition subsequent, is still a condition. This element is the indispensable ingredient in converting mere agreements between executive officials into the equivalent of laws of the land. 

But if you think a sideways pass to the Supreme Court resolves this, then good luck. In the US, judicial temperance prevented an outright resolution of the issue when their High Court was asked to declare unconstitutional President James Earl “Jimmy” Carter’s nullification of the Mutual Defense Treaty between US and Taiwan. The American justices yielded to the political question doctrine – that the matter was for the two political departments to sort out –  to justify a hands off position. The Court also conceded that there was no dispute to trigger their jurisdiction. The case was filed by Senators (Republicans Goldwater and Co.) and not by the Senate as an institution. The latter did not even act officially by filing a Resolution expressing their sense against the unilateral termination. 

In the same way, our Senate may have passed its Resolution in the aftermath of PRRD’s notice of termination. But it was not a Resolution in opposition to the Executive action. Though backed by 13 votes, the tenor of the same merely urged the President to reconsider. Where, thus, is the justiciable controversy if the Senate does not object to the withdrawal? This might be a way out for the Court. Invoke the political question doctrine and the justiciability card.

“Therefore we do not lose heart. Even though our outward man is perishing, yet the inward man is being renewed day by day.” 2 Corinthians 4:16.