On Tuesday March 10, the Philippines government led by Rodrigo Duterte suffered two significant set-backs in its attacks upon the independent media network ABS-CBN.
These attacks by Duterte against critical media have taken a form familiar in modern authoritarian states - that of attrition by litigation and state regulation.
Like most media organisations in democracies, Philippine television network ABS-CBN – the country’s largest broadcaster - operates under a license issued by the national government - commonly referred to as a ‘legislative franchise’ in the Philippines. The problem with such a system is that this ‘legislative franchise’ operates for a fixed period in the gift of the legislature, and ultimately the President. ABS CBN has been regarded as critical of Duterte. Conveniently for the hostile Duterte government, the ABS CBN network’s franchise expires on 30 March 2020.
Because significant legal uncertainty surrounds the whole licensing process, the extension nevertheless will continue to have a chilling effect on the operation of ABS-ABN and its 10,000 employees. The ABS-CBN critics in the congress have pushed back vigorously – challenging the legality of the extension. It remains to be seen whether a challenge to the NTC’s decision will be taken to the Supreme Court.
Of course, Duterte would like nothing more than to have the network in friendlier hands. He has effectively invited the network to relinquish its licence. Echoing the sentiments of Viktor Orban, Duterte was quoted recently as saying: “ABS-CBN, your contract is about to expire. If I were you, you’re better off selling it,” he said. “I will make sure that you will remember this episode of our times forever.”
As well as a vocal national and international campaign by media and human rights organisations including the IFJ’s affiliates of the South East Asian Journalists Union (SEAJU) network, even Duterte’s daughter Sara Dutere-Carpio has made a statement opposing the cancellation of the ABS-CBN licence. A change.org petition has now collected almost 200,000 signatures.
The congressional Committee on Legislative Franchises began its deliberations on the ABS-CBN franchise renewal issue on March 10. Contrary to the wishes of Duterte’s most strident supporters, it flagged a request for a ‘provisional permit’ from the National Telecommunications Commission [‘NTC’] to permit a temporary extension of the licence. In a welcome move which undercut Duterte’s supporters, the NTC acted swiftly yesterday and announced that an extension would be granted. While a significant victory, this is, in reality, only a reprieve.
The precarious legal position of the network serves to emphasise the structural threats to the Philippines’ free media presented by a regulatory regime which provides no ongoing guarantees for broadcast licence holders. There is, at least, a real doubt that the franchise can be extended without a specific legislative act despite the fact that the NTC will follow recent legal advice of the DOJ (Department of Justice) that the continuation is permissible ‘barring a gross violation’ of the NTC rules and regulations.
Under any ‘reasonable’ system of regulation, license holders would get significant notice of any change in circumstances affecting their license conditions, and a guarantee that licence revocation would or could occur upon a proper basis - in other words, not upon ‘political’ grounds. A broadcast licence is a significant property interest which should only be put at risk for a justifiable, and legally coherent, cause.
Not content with the onslaught on the franchise expiry, however, a second - equally threatening option - has also being directed by the Philippines’ government against ABS CBN.
In early February 2020, Duterte’s Solicitor-General, Jose Calida, filed a "quo warranto" petition in the Philippines Supreme Court to revoke the existing franchise of ABS-CBN, saying the network had violated the ownership rules set by Congress. A "quo warranto" petition is a legal procedure directed to a person or entity which, it is alleged "usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise," under the Rules of Civil Procedure.
Calida claimed that the network committed violations of the conditions on the licence set by Congress in 1995. The essence of that complaint is that restrictions on foreign ownership of the media have been breached by the issue of financial instruments known as Philippine Deposit Receipts [PDRs] to foreigners, which meant giving control and voting rights to them. ABS-CBN has vigorously rejected these allegations.
The case alleges that ABS-CBN had allowed foreign investors to "take part in the ownership of a Philippine mass media entity" despite being prohibited by the Constitution. These are similar charges to some of those brought against Rappler last year.
Calida, a long-time political crony of Duterte before his elevation to Solicitor-General, is quoted as saying he wanted to ‘put an end to highly abusive practices of ABS-CBN”. These so-called ‘practices’ have been pointed out by the Philippines press and experts in the area of media regulation as having gone unnoticed for years, if not decades.
Calida also alleges that ABS-CBN exceeded its franchise when it launched its TV Plus subscription service and the KBO Channel without approval from the National Telecommunications Commission.
The Court petition asks that “..[t]he legislative franchises of ABS-CBN Corporation and its subsidiary, ABS-CBN Convergence, must be revoked”. A franchise is a special privilege granted by the State, and should be restricted only to entities which faithfully adhere to our Constitution and laws," Calida said in a statement. Calida claims that there is ‘no politics’ involved in the laying of the charges.
ABS-CBN has earlier denied Calida's allegations and insisted it had complied with all laws governing its franchise. It also reiterated that its PDRs "were evaluated and approved" by the Securities and Exchange Commission and the Philippine Stock Exchange prior to its public offering. It issued a detailed rebuttal of the numerous charges against it in a 58-page submission to the Supreme Court on Monday, February 24.
To add insult to injury, Calida also sought a gag order against ABS-CBN to prevent it from discussing the case. This was roundly condemned by press freedom organisations and ABS CBN. ‘Gag’ orders are only granted in extremely limited circumstances - for example, to prevent terrorist attacks - and the Solicitor General’s application in this case goes well beyond existing legal authorities.
In the second significant blow to Calida and Duterte on Tuesday, the Supreme Court deferred consideration of Calida’s "quo warranto" petition and significantly, the ‘gag order’. The hearing of the petition has been deferred until April 14. This deferral, at the very least, undermines the hyperbolic claim of ‘urgency’ advanced by Calida in favour of the gag order.
The National Union of Journalists of the Philippines (NUJP) has been staging a series of protest actions, calling the threats against ABS-CBN an affront to press freedom and freedom of expression. The NUJ said the issue “… proves that this government will do whatever it takes to shut down a network that the President doesn't agree with. Freedom of speech is at stake here. If you silence the media, the people are in peril because they will lose a platform where they can get the information that they need.”
Until recently, the Philippines under President Duterte had not quite fully conformed to the complete playbook of modern authoritarianism. Unlike other fully-fledgedilliberal democracies of the modern era, in its early days Duterte’s government had not yet unleashed a systematic campaign of attrition and repression against its free press. In countries like Russia, Venezuela, Turkey and Hungary, outright censorship had often been side-stepped in favour of enfeebling media organisations by entanglement in a web of government regulatory intrusion. The same ultimate impact could be achieved without outright censorship. The current legal assault on ABS-CBN follows this pattern.
When the small, on-line media publisher Rappler was attacked by Duterte it was perhaps easy for some to see the attack as a singular, ‘get square’ against Rappler’s trenchant criticism of Duterte’s so-called ‘war on drugs’. Any such assumption can no longer stand. The final piece of the framework of illiberal democracy in the Philippines is now being put in place by Duterte. Press Freedom and civil society hope and expect that the Supreme Court will be a bulwark against this disturbing development.
Jim Nolan is the International Federation of Journalists’ pro-bono legal counsel for the Asia-Pacific and a regular legal observer on key cases in the region.