Equal protection of the law - Justice Antonio T. Carpio

In “Equal Protection of the Law,” Justice Carpio applies the constitutional guarantee against unfair discrimination to the ABS‑CBN franchise controversy of May 2020. He notes that the National Telecommunications Commission’s (NTC) cease‑and‑desist order, issued immediately after the network’s franchise expired, was unprecedented; historically, broadcast and telecommunications companies were allowed to continue operating while Congress deliberated on renewal. ABS‑CBN, by contrast, was singled out and effectively shut down during the pending renewal, which Carpio argues denied the company equal protection of the laws, as similarly situated entities had not faced comparable treatment. He further explains that proposals to extend ABS‑CBN’s franchise alone—even if well‑intentioned—would create unfair privilege unless drafted to apply generically to all franchisees in similar circumstances and retroactively to January 1, 2020. Carpio emphasizes that such an extension must be enacted as a law properly passed by Congress and presented to the President, rather than merely a joint resolution, because only a law can confer the right to operate a franchise.

The franchise of ABS-CBN expired on May 4, 2020, while its application for renewal of franchise was pending in the House of Representatives. The following day the National Telecommunications Commission (NTC) issued a cease and desist order (CDO) directing ABS-CBN to stop broadcasting.

This is the first time that the NTC issued a CDO to a broadcast company upon expiration of its franchise while pending renewal in Congress. In the past, broadcast and telecommunications companies were never issued CDOs even if their franchises expired while pending renewal in Congress. NTC always allowed Congress to deliberate on the franchise renewal until the end of the term of Congress. The franchise of Vanguard Radio Network (VRN) expired on June 13, 2017, while its franchise renewal was pending in Congress. NTC allowed VRN to continue broadcasting. The renewal of VRN’s franchise was subsequently approved on Oct. 30, 2018.

The franchise of the Catholic Media Network (CMN) expired on Aug. 4, 2017, but the NTC allowed CMN to continue broadcasting. CMN’s franchise renewal was later approved, and lapsed into law on April 22, 2019. NTC accorded the same privilege to Isla Communications Company, whose franchise expired on May 6, 2017, and renewed only on Dec. 14, 2018. The NTC obviously discriminated unfairly against ABS-CBN, denying ABS-CBN its constitutional right to equal protection of the law. The Constitution mandates, “nor shall any person be denied the equal protection of the laws.” The state, its departments and officials are prohibited by the Constitution from discriminating unfairly against natural or juridical persons.

To remedy this constitutional violation, a majority of senators have authored a bill to allow ABS-CBN to continue broadcasting until the end of the term of the present Congress on June 30, 2022. Some members of the House are proposing a joint resolution allowing ABS-CBN to continue broadcasting during the same period. This will give Congress ample time to deliberate on the franchise renewal of ABS-CBN without disrupting the broadcast operations of ABS-CBN.

The senators are correct in proposing a bill to allow ABS-CBN to continue its broadcast operations. However, the senators will be committing the very same constitutional error they want to remedy if they limit the bill to ABS-CBN. If enacted into law, the bill will deny equal protection of the law to other franchisees whose franchises will expire while Congress deliberates on their renewal. Ironically, there will be discrimination in favor of ABS-CBN. To cure this infirmity, the bill should be generic, applicable to all broadcast and telecommunication franchisees similarly situated, and retroactive to Jan. 1, 2020, covering the present and future Congresses.

The members of Congress should file a bill instead of a joint resolution. In Ang Nurse Party List v. Executive Secretary, a Supreme Court en banc decision which I penned in October 2019, the Court ruled that a joint resolution approved by both chambers of Congress and signed by the President is not a law. The Court declared that such a joint resolution cannot reduce the salary grade of government nurses that had earlier been fixed by law. The Constitution speaks only of a bill that can be enacted into law and that can be presented to the President for his approval or veto. A bill notifies the public that it may become a law that binds them, while a joint resolution does not give that kind of notice because a joint resolution usually expresses only the sense of Congress.

Any extension of the term of a broadcast or telecommunications franchise must be embodied in a law. Without a franchise embodied in a law, a broadcast or telecommunications company cannot operate and cannot be issued any authority by the NTC. This was the ruling of the Supreme Court in the 2003 case of Associated Communications v. NTC.Recommended by

Speaker Alan Peter Cayetano announced on May 12, 2020, that the hearings on the franchise renewal of ABS-CBN would be “fair, impartial, comprehensive,” with a “thorough presentation and appreciation of the evidence.” This means that the hearings could span the remaining years of the term of the present Congress. Absent the intervention of the Supreme Court, only a general law allowing ABS-CBN to continue broadcasting can prevent its radio and TV stations from being silenced until the end of the term of President Duterte.