OSG Calida pinaliwanagan sa ‘quo warranto’ ng batikang abogado

Mainit na usapin ngayon ang “quo warranto” laban  sa ABS-CBN.

Alamin natin ang ibig sabihin ng “quo warranto” at ang ilan pang paliwanag ukol kaso na ito mula sa isang bihasang abogado sa bansa.

ABS-CBN quo warranto case

UNSOLICITED LEGAL OPINION ON CALIDA’S QUO WARRANTO AGAINST ABS-CBN

By Atty. Jobert I. Pahilga

Why is Calida’s Quo Warranto “Motion” Legally Infirm and Fatally Defective?

First, under Rule 66 of the Rules of Civil Procedure, Quo Warranto is initiated by filing a verified PETITION. Calida filed a Very Urgent Omnibus MOTION to the Supreme Court. It seems Calida does not even know the difference between a motion and a petition. But for a lawyer who knows and worth his salt, this is very basic.

There is a hell of difference between a pleading and a motion. Section 1, Rule 6 of the Rules of Civil Procedure defines a pleading as the written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment. Example of this are the Complaint, a Petition, an Answer, or a Reply.

Meanwhile, Rule 15 of the Rules of Civil Procedure provides for the definition of motion, its forms, and requires a hearing thereof.

Section 1, Rule 15 defines a motion as an application for relief other than by a pleading. Rule 15 also provides that all motions shall be in writing except those made in open court or in the course of a hearing or trial.

Thus, unlike any pleading, motions may be made orally in open court while all pleadings must be in writing. Also motions, except those which the court may act upon without prejudicing the rights of the adverse party, shall be set for hearing by the applicant. A pleading is not set for hearing.

I supposed, therefore, that this SolGen who caused the ouster of Chief Justice Ma. Lourdes Sereno should have known or should know that he could not initiate a Quo Warranto by a mere motion. It should be through a verified petition as stated in Rule 66. Or does he know?

Second, a Quo Warranto, which literally means “by what authority”, is an extraordinary legal remedy whereby the State challenges a person or an entity to show by what authority he holds a public office or exercises a public franchise.

The object is to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the office.

Quo Warranto therefore is a special civil action commenced by a verified petition against the following:

(a) a person who usurps a public office, position or franchise;

(b) a public officer who performs an act constituting forfeiture of a public office; or

(c) an association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority to do so.

In short, a verified petition for Quo Warranto is filed against a usurper of a public office or a franchise.

In the case of ABS-CBN, Congress granted it a franchise. The franchise was approved by then President Ramos. Thus, ABS-CBN is not a usurper of a franchise. Hence, Quo Warranto would not lie against it.

If ABS-CBN violated the conditions of its franchise, would Quo Warranto lie? Yes. This is the ruling of the Supreme Court in Divinagracia vs. Consolidated Broadcasting System, Inc., G.R. No. 162272, April 7, 2009.

But did ABS-CBN violate the conditions of its franchise? That is a question of fact that needs to be proven by Calida, which gives us the third reason why filing the case to the Supreme Court is wrong.

Third, as stated, the motion filed by Calida to the Supreme Court calls for the determination of the Supreme Court of facts as to whether indeed ABS-CBN violated the conditions of its franchise.

ABS-CBN already refuted Calida’s allegations on that matter. There is therefore a need to determine the true and correct facts thereof. Sino ba kay Calida at ABS-CBN ang tama? But Calida, being the accuser, must prove his accusation.

In a long line of cases, the Supreme Court held that it is not a trier of facts. Thus, while Quo Warranto petitions may be filed directly to the Supreme Court, it will act on it if the facts are clear and undisputed that the respondent in the petition is a usurper or has violated the terms of its franchise. But in the case filed by Calida through the Very Urgent Omnibus Motion, the Supreme Court can dismiss it outright because his allegation that ABS-CBN violated the conditions of its franchise, is, for now, a mere allegation. It has not yet been proven by Calida.

Verily, there should be first a final judgment that ABS-CBN indeed violated the conditions of its franchise before the Supreme Court could entertain Calida’s Very Urgent Omnibus Motion.

Fourth, clearly, the case filed by Calida is a political harassment. It is politically motivated. It proceeds from the order of Duterte not to renew the franchise of ABS-CBN which is expiring this March. By filing the motion, Duterte is giving a subtle order to Congress, through Calida, not to renew ABS-CBN’s franchise. For why would Calida file the motion when ABS-CBN’s franchise is already set to expire in one month? Why not wait for the expiration of the franchise? So what is Calida’s motive? Your guess is as good as mine!

Fifth, there is this freedom of expression and of the press issue here. For granting for the sake of argument that ABS-CBN violated the terms of its franchise, is the violation be of such a degree that would warrant the revocation of the franchise?

As said by the Supreme Court in Divinagracia, supra, “the cancellation of a CPC or license to operate of a broadcast station, if we recognize that possibility, is essentially a death sentence, the most drastic means to inhibit a broadcast media practitioner from exercising the constitutional right to free speech, expression and of the press.”

So does public interest require Calida, the SolGen, to ask for the revocation or cancellation of the franchise of ABS-CBN? What benefit, if any, will the public derive from the cancellation of ABS-CBN’s franchise?

This is my unsolicited legal opinion.